Opinion
20-CV-8629 (LLS)
01-05-2021
YAYA JALLOW, Plaintiff, v. CITY OF NEW YORK, Defendant.
ORDER TO AMEND
LOUIS L. STANTON, United States District Judge:
Plaintiff, appearing pro se, brings this action invoking the Court's federal question and diversity jurisdiction under 28 U.S.C. §§ 1331 and 1332. He alleges that members of the New York City Police Department (NYPD) falsely arrested and detained him. By order dated December 8, 2020, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court grants Plaintiff leave to file a second amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP 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.
The Supreme Court has held that 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
Plaintiff brings this action against the City of New York, claiming that police officers from the NYPD violated his rights by arresting and detaining him on two occasions. He invokes the Court's federal question and diversity jurisdiction and brings causes of action under three criminal statutes: (1) 18 U.S .C § 1038, which prohibits criminal hoaxes or terrorist threats; (2) 18 U.S .C § 1201, the federal kidnapping statute; and (3) N.Y . Penal Law § 135.10, New York's unlawful imprisonment statute. Plaintiff seeks money damages.
The following facts are taken from the amended complaint: On August 21, 2020, Plaintiff received “discriminatory service” at a Chipotle and was attacked by one of the employees. (ECF No. 4-1, ¶ 18.) After he defended himself by fighting back, the police was called. When the police arrived, Plaintiff told them what had occurred and cited to them statutes “that were involved, ” but “instead of doing the legal, proper, and morally right thing, ” the police arrested and detained him “against his will and consent and without legal or valid justification.” (Id.) The police charged plaintiff with assault and while “other City personnel [did] everything in their power to obstruct the Plaintiff's justice and due process, ” the police made “sure to provide the aggressor and preparatory in this situation with the full protection of the law and their due process.” (Id.)
Three weeks later, Plaintiff had another encounter with the police and was again arrested and detained. On October 14, 2020, while Plaintiff was shopping at a Food Bazaar Supermarket in Brooklyn, New York, he was “accosted by several employees there, a continuation of the aforementioned discriminatory services, into a fight.” (Id. ¶ 19.) Although Plaintiff was not the aggressor, he was again arrested and charged with disorderly conduct. The police “lack[ed] authority or valid reason” to once again arrest and detain Plaintiff. (Id.)
DISCUSSION
A. Plaintiff's motions to amend the complaint
Four days after filing his initial pleading (ECF No. 2), Plaintiff submitted to the Court a motion to amend his complaint, along with an amended complaint (ECF Nos. 4, 4-1). Under Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiff may amend his complaint once as of right within a certain timeline. As Plaintiff's filing of an amended complaint is permitted under Rule 15(a), his first motion to amend (ECF No. 4) is denied as moot.
On December 9, 2020, Plaintiff submitted another motion to amend his complaint with a proposed second amended complaint (ECF Nos.6, 6-1). In the proposed second amended complaint, Plaintiff asserts that the City of New York discriminated against him based on his race and color after his arrest. But he fails to provide any facts in support of his claims, including the information he provided in the amended complaint. For that reason the Court denies Plaintiff leave to file the proposed second amended complaint.
Plaintiff, however, is granted leave to file a second amended complaint with all of his claims as provided below.
B. Plaintiff's claims fall under 42 U.S.C. § 1983
Plaintiff brings this action asserting that the City of New York violated his federal rights when NYPD officers falsely arrested and detained him. As he brings this action against the City of New York - a state actor - the Court construes the amended complaint as asserting claims under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
Plaintiff also invokes the Court's diversity jurisdiction, but he fails to allege facts demonstrating that the Court has diversity jurisdiction over this action. To establish jurisdiction under 28 U.S.C. § 1332, a plaintiff must first allege that the plaintiff and the defendants are citizens of different states, Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 388 (1998), and that the claim is in excess of the sum or value of $75,000.00, the statutory jurisdictional amount, see 28 U.S.C. § 1332(a); Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006)). Plaintiff asserts that he is a resident of Brooklyn, New York, precluding complete diversity of citizenship between him and the City of New York.
1 p Plaintiff's false arrest and imprisonment claims
Plaintiff asserts that the police falsely arrested and imprisoned him on two occasions. His false-arrest and false-imprisonment claims are addressed together as they are synonymous claims. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). For the elements of a § 1983 false-arrest claim, the Court first looks to state law. See Manuel v. City of Joliet, Ill., 137 S.Ct. 911, 925 (2017) (“[T]o flesh out the elements of this constitutional tort, we must look for ‘tort analogies.'”); see also Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018) (holding that common law principles are meant simply to guide rather than to control the definition of § 1983 claims and courts should not “mechanically apply” the law of New York State).
“False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment.” Evans v. City of New York, 308 F.Supp.2d 316, 329 n.8 (S.D.N.Y. 2004) (quoting Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999) (Glasser, J., dissenting)).
To establish a false arrest claim under New York law, a plaintiff must show that: “(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.” Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is privileged ifit is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.” (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)) (internal quotation marks omitted)).
If “the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest, ” the arrest is privileged, and the plaintiff cannot state a claim for false arrest. Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Officers have probable cause to arrest when they have “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed . . . a crime.” Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006). “Probable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information.” Bernard v. United States, 25 F.3d 98, 102 (1994); Curley v. Vill. of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (holding that a police officer is “not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”). Put another way, police officers may have had probable cause to arrest if they have acted reasonably, even if they were mistaken.
Plaintiff has not pleaded facts indicating that any officer of the NYPD arrested him without probable cause for assault on August 21, 2020, and for disorderly conduct on October 14, 2020. His assertions suggest instead that “the facts known by the arresting officer[s] at the time of the arrest objectively provided probable cause to arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Plaintiff, who was charged with assault for the August 21, 2020 incident, asserts that he defended himself against a Chipotle employee by fighting back. And he readily admits that he was involved in a fight with employees of the Food Bazaar on October 14, 2020. Plaintiff's allegations indicate that the facts and circumstances would warrant a person of reasonable caution to believe that he had committed a crime and that the police had probable cause to arrest him. See Ricciuiti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (“Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.”).
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The Court therefore grants Plaintiff leave to file a second amended complaint.
If Plaintiff files a second amended complaint, he should allege any additional facts suggesting that the NYPD officers lacked probable cause to arrest him for the two incidents. Plaintiff must describe the circumstances of his arrest and state what the employees of Chipotle and the Food Bazaar, eyewitnesses, and the police officers did or said. He should also provide the status of his criminal proceedings for the assault and disorderly conduct charges.
D Discrimination Claim
As noted, Plaintiff submitted a proposed second amended complaint in which he asserted that he was subjected to discrimination based on his race and color. But because he failed to provide any facts in the proposed second amended complaint, the Court is denying him leave to file the proposed second amended complaint. Plaintiff may, however, assert facts in support of his discrimination claim in the second amended complaint that he is granted leave to file.
Plaintiff's assertions of discrimination could be read as arising under the Fourteenth Amendment's Equal Protection Clause, which prohibits the disparate treatment of similarly situated individuals. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Brown v. City of Syracuse, 673 F.3d 141, 151 (2d Cir. 2012). To state an equal protection claim, a plaintiff must allege that he is a member of a suspect or quasi-suspect class of persons, see Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); such classes include, but are not limited to, classes identified by race, gender, alienage, or national origin, see Myers v. Cnty. of Orange, 157 F.3d 66, 75 (2d Cir. 1998). The plaintiff must also allege facts showing that the defendants have purposefully discriminated against the plaintiff because of his membership in that class. See Turkmen v. Hasty, 789 F.3d 218, 252 (2d Cir. 2015) (quoting Iqbal, 556 U.S. at 676, rev'd and vacated in part on other grounds sub nom., Ziglar v. Abbasi, 137 S.Ct. 1843 (2017)); Giano, 54 F.3d at 1057. “[P]urposeful discrimination requires more than intent as volition or intent as awareness of consequences. It instead involves a decisionmaker's undertaking a course of action because of, not merely in spite of, [the action's] adverse effects upon an identifiable group.” Turkmen, 789 F.3d at 252 (quoting Iqbal, 556 U.S. at 676-77) (internal quotation marks and citations omitted, alterations in original).
Plaintiff does not allege any facts suggesting that anyone treated him differently from other similarly situated individuals or that any such treatment was based on an immutable characteristic - such as race - or any other improper factor. But Plaintiff may provide in the second amended complaint any facts suggesting that individuals named as defendants treated him differently because of his race or color.
3. Plaintiff's claims against the City of New York
Plaintiff names the City of New York as the sole defendant. When a plaintiff sues a municipality under § 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be subjected' to such deprivation.”) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
Here, Plaintiff asserts that the City of New York violated his rights when the NYPD police officers arrested and detained him. But he does not allege that a policy, custom, or practice of the City of New York caused a deprivation of his federally protected rights. Plaintiff therefore fails to state a claim against the City of New York on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
In light of Plaintiff's pro se status, the Court grants him leave to state facts in the second amended complaint suggesting that a City policy, custom, or practice caused the alleged constitutional violations.
4. Personal Involvement
To state a claim under § 1983, a plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). An individual defendant can be personally involved in a § 1983 violation if:
(1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873.
“Although the Supreme Court's decision in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations, ” the Second Circuit has not yet examined that issue. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Here, Plaintiff alleges that NYPD police officers violated his rights, but he does not identify these individuals or name them as defendants. The Court therefore grants Plaintiff leave to name in the second amended complaint the individual-defendants who personally violated his constitutional rights and state facts in support of his claim against each individual-defendant.
C. Plaintiff cannot bring claims under criminal statutes
Plaintiff also purports to bring claims under three criminal statute - 18 U.S.C. § 1038, 18 U.S .C § 1201, and N.Y . Penal Law § 135.10. But these criminal provisions cannot be the basis for a civil action because such statutes do not provide private causes of action. See Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164, 190 (1994) (refusing to infer a private right of action from a “bare criminal statute”); Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009) (“federal criminal statutes do not provide private causes of action).
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint for the second time to detail his claims. First, Plaintiff must name as the defendant(s) in the caption and in the statement of claim those individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane Doe” in both the caption and the body of the second amended complaint.The naming of John Doe defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe” defendants and amending his complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
The caption is located on the front page of the complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write “see attached list” on the first page of the second amended complaint. Any defendants named in the caption must also be discussed in Plaintiff's statement of claim.
For example, a defendant may be identified as: “NYPD Officer John Doe #1 on duty August 21, 2020, during the 7-3 p.m. Shift.”
In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the second amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's second amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's second amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief. Because Plaintiff's second amended complaint will completely replace, not supplement, the amended complaint, any facts or claims that Plaintiff wishes to maintain must be included in the second amended complaint.
CONCLUSION
The Clerk of Court is directed to detach the amended complaint (ECF No. 4-1) from the first motion to amend and docket it separately. Plaintiff's motions to amend (ECF Nos. 4 and 6) are denied for the reasons stated. The Clerk of Court is directed to terminate the two motions.
Plaintiff is granted leave to file a second amended complaint that complies with the standards set forth above. Plaintiff must submit the second amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as a “Second Amended Complaint, ” and label the document with docket number 20-CV-8629 (LLS). A Second Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff has consented to electronic service. (ECF No. 3.)
SO ORDERED.
SECOND AMENDED COMPLAINT
I. BASIS FOR JURISDICTION
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
[ ] Federal Question
[ ] Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?+++
B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff,, ___ (Plaintiff's name) is a citizen of the State of __(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of .___
If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.
If the defendant is an individual:
The defendant,, ___ (Defendant's name) is a citizen of the State of____ or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of ___If the defendant is a corporation:
The defendant___,, is incorporated under the laws of ___the State of ___and has its principal place of business in the State of ___or is incorporated under the laws of (foreign state)___ and has its principal place of business in.___
If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.
II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
First Name ___Middle Initial __Last Name__
Street Address__
County, City State Zip Code__
Telephone Number ___Email Address (if available)__
B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed.
Defendant 1:___
First Name __Last Name__
Current Job Title (or other identifying information)__
Current Work Address (or other address where defendant may be served)__
County, City State Zip Code__
Defendant 2:___
First Name ___Last Name___
Current Job Title (or other identifying information)__
Current Work Address (or other address where defendant may be served)__
County, City __State ___Zip Code
Defendant 3:____
First Name ____Last Name
Current Job Title (or other identifying information)__
Current Work Address (or other address where defendant may be served)__
County, City___ State ___Zip Code__
Defendant 4:____
First Name ____Last Name___
Current Job Title (or other identifying information)___
Current Work Address (or other address where defendant may be served)____
County, City ___State __Zip Code__
III. STATEMENT OF CLAIM
Place(s) of occurrence: __
Date(s) of occurrence:__
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed.______
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.___
IV. RELIEF
State briefly what money damages or other relief you want the court to order.____
V. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated__ Plaintiff's Signature___
First Name __Middle Initial___ Last Name__
Street Address___
County, City__ State ___Zip Code___
Telephone Number ___Email Address (if available)__
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: [ ]Yes [ ] No
If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.
Pro Se (Nonprisoner) Consent to Receive Documents Electronically
Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their cases electronically (by e-mail) instead of by regular mail. Receiving documents by regular mail is still an option, but if you would rather receive them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER at www.pacer.uscourts.gov or 1-800-676-6856;
Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER Case Locator over the internet.
2. Complete and sign this form.
If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked document number in the e-mail. Once you click the hyperlink and access the document, you may not be able to access the document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For this reason, you should print or save the document during the “free look” to avoid future charges.
You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone. See ECF Rule 4.3
IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court's Electronic Case Filing Rules & Instructions, documents may be served by electronic means. If you register for electronic service:
1. You will no longer receive documents in the mail;
2. If you do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case.
The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk's Office at the Court.
CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that:
1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing;
2. I have established a PACER account;
3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if I wish to cancel this consent to electronic service;
5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and
6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like to receive electronic service of notices of documents, I must file consent forms for those cases.
Civil case(s) filed in the Southern District of New York:
Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending and terminated cases. For each case, include the case name and docket number (for example, John Doe v. New City, 10-CV-01234)._____