Opinion
09-CV-3528 (DLI).
September 2, 2009
MEMORANDUM AND ORDER
Plaintiff Ishutkin Konstantin, who is currently being held on immigration charges at the Port Isabel Detention Center in Los Fresnos, Texas, filed this pro se action on July 20, 2009. He seeks $3,080.000 in damages. The court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and, for the reasons discussed below, plaintiff is directed to amend his complaint within thirty (30) days of the entry of this Order.
BACKGROUND
Plaintiff Ishutkin Konstantin brings this action alleging that, on November 1, 2008, he was "mistakenly arrested by Brooklyn police." (Compl. at 1, ¶ III.) On November 2, 2008, an immigration hold was placed on plaintiff by defendant and he was held at Rikers Island from November 4, 2008 to May 8, 2009. Id. Plaintiff states that, on May 6, 2009, the criminal charges that were the basis for his November 1, 2008 arrest were dismissed, but, on May 8, 2009, he was transferred to an "Immigration jail in New York" by defendant. Id. Plaintiff further states that, on May 14, 2009, an immigration judge "did not released me from jail, and after my request gave me Order for Deportation." Id. Plaintiff further alleges that while he was being held at Rikers Island, his wife passed away on April 1, 2009. (Compl. at 2.) Plaintiff seeks monetary damages. Id.
STANDARD OF REVIEW
In reviewing plaintiff's complaint, the court is mindful that, "`a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citations omitted); McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004). Under 28 U.S.C. § 1915A, a district court "shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or employee of a governmental entity." 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner complaint sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A (b); Liner v. Goord, 196 F.3d 132,134, n. 1 (2d Cir. 1999) (noting that under Prison Litigation Reform Act, sua sponte dismissal of frivolous prisoner complaints is not only permitted but mandatory); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 11 (2d Cir. 1999).DISCUSSION
Sovereign Immunity
It is well settled that the United States and its agencies have sovereign immunity from suit and can only be sued with their consent and under whatever terms Congress may impose. United States v. Sherwood, 312 U.S. 584 (1941); Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004); Randell v. United States, 64 F.3d 101, 106 (2d Cir. 1995), cert. denied, 519 U.S. 815 (1996). Therefore, because the U.S. Department of Homeland Security Immigration and Customs Enforcement is an agency of the United States, it is immune from suit.
False Arrest and False Imprisonment Claims
To the extent that plaintiff is alleging false arrest and false imprisonment pertaining to his November 1, 2008 arrest by police in Brooklyn, New York, they are considered synonymous causes of action. Covington v. City of New York, 171 F.3d 117, 125 (2d Cir. 1999); Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991); Fox v. City of New York, 2004 WL 856299, at *4 (S.D.N.Y. Apr. 20, 2004). To establish a claim for false arrest under 42 U.S.C. § 1983, a plaintiff must show that "`the defendant intentionally confined him without his consent and without justification.'" Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Wray v. City of New York, 340 F. Supp. 2d 291, 301 (E.D.N.Y. 2004). A showing of probable cause will defeat all federal and state law claims for false arrest and imprisonment. Escalera, 361 F.3d at 743; Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003). The existence of probable cause is a complete defense to an action for false arrest, even where a person is ultimately acquitted. Weyant, 101 F.3d at 852 (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
Moreover, 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." Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (citations omitted). Here, plaintiff does not name the individual defendants who allegedly violated his constitutional rights or allege how each defendant was personally involved in the denial of his constitutional rights.
CONCLUSION
Plaintiff's claims against the U.S. Department of Homeland Security Immigration and Customs Enforcement are dismissed pursuant to 28 U.S.C § 1915A. To the extent plaintiff wishes to file an amended complaint to support his false arrest claim, plaintiff is hereby directed to file an amended complaint within thirty (30) days from the date of this Order, i.e., on or before October 2, 2009. Plaintiff should allege how each defendant was personally involved in the events that he claims violated his rights and provide the dates and locations for each relevant event. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). If plaintiff wishes to bring claims against a defendant and does not know the name of the individual, he may identify each of them as John or Jane Doe and to the best of his ability describe each individual and the role he or she played in the alleged deprivation of plaintiff's rights. The allegations must be short, plain, and concise. Plaintiff shall also name all defendants in the caption of his complaint. Plaintiff is advised that any amended complaint he files will completely replace the original complaint. Plaintiff's amended complaint must be captioned as an "AMENDED COMPLAINT" and bear the same docket number as this Order. For the convenience of pro se plaintiff, a copy of "Instructions on How to File an Amended Complaint" is attached to this Order.
All further proceedings shall be stayed for thirty (30) days, until October 2, 2009, for plaintiff to comply with this Order. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK PRO SE OFFICE U.S. COURTHOUSE 225 CADMAN PLAZA EAST BROOKLYN, NEW YORK 11201 HOW TO AMEND YOUR COMPLAINTIf you have forgotten to state an important matter in your complaint, you discover something new after you filed your complaint, you want to add a defendant, or you want to insert the true name of a "John Doe" defendant, you may be able to file an amended complaint. An amended complaint does not just add to the first complaint. Once you file an amended complaint it entirely replaces your original complaint.
Amendments to a complaint are governed by Rule 15(a) of the Federal Rules of Civil Procedure. Rule 15(a) provides that:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.
This means that if the defendant has not yet filed an answer to your complaint, you can file one amended complaint without permission of the Court. If the defendant has filed a motion to dismiss but has not filed an answer, you are still entitled to file one amended complaint without permission. (You are only permitted to file one amended complaint before defendant files an answer; if you wish to file a second amended complaint before defendant files an answer, you must obtain defendant's consent or you must obtain permission from the Court). However, if the defendant has already filed his answer to your complaint, you must get written consent from the defendant or permission of the Court before amending your complaint. If the defendant agrees in writing that you can file an amended complaint, you must ask the judge to write "So Ordered" on the written consent, indicating that the judge has approved the consent. If the defendant does not give you written consent, you can ask permission from the Court by filing a motion to amend the complaint and including a copy of the proposed amended complaint with your motion papers. Instructions for preparing a motion are attached and are available separately.
If you file an amended complaint. It must be captioned as an "Amended Complaint."
FILING AND SERVING THE AMENDED COMPLAINT SERVICE OF THE AMENDED COMPLAINT BEFORE THE ORIGINAL COMPLAINT HAS BEEN SERVED
If you decide to amend your complaint before defendant has been served with your original complaint and summons, you should serve the amended complaint on defendant and file the original amended complaint with the Pro Se Office as follows:
1. Make copies of your amended complaint.
2. Keep one copy for your own records.
3. File the original of your amended complaint with the Pro Se Office.
4. If you have not added new defendants in your amended complaint, use the summons that was originally issued by the Court.
5. Have a copy of the summons and a copy of the amended complaint served on each defendant by someone who is over eighteen and is not a party to the action. The original summons with the seal of the court embossed on it must be returned to the Court, so do not serve the original summons on any defendant.
6. Have the person who serves the summons and amended complaint on each defendant complete an affidavit or affirmation of service of process form.
7. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.
8. Attach the original affidavit or affirmation of service to the original summons.
9. File the original summons and the affidavit or affirmation of service of process with the Pro Se Office.
SERVICE OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON ALL DEFENDANTS
If you decide to amend your complaint after the defendant has been properly served with your original complaint and summons (and you have not added any new defendants in your amended complaint), you should take the following steps:
1. Make copies of your amended complaint."
2. Keep one copy for your own records.
3. Send a copy of your amended complaint to the attorney for each defendant by ordinary first-class mail.
4. Complete an affidavit or affirmation of service of process form stating that the amended complaint was mailed to each defendant.
5. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.
6. File the original amended complaint and your original affidavit or affirmation of service of process with the Pro Se Office.
DELIVERY OF THE AMENDED COMPLAINT AFTER THE ORIGINAL COMPLAINT HAS BEEN SERVED ON SOME DEFENDANTS BUT NOT ON OTHERS
If you decide to amend your complaint after some defendants have been served with your original complaint and summons but before other defendants have been served (or you have added new defendants in your amended complaint), you should take the following steps:
1. Make copies of your amended complaint.
2. Keep one copy for your own records.
3. Send a copy of your amended complaint by ordinary first-class mail to each defendant who has already been served.
4. Complete an affidavit or affirmation of service of process form stating that the amended complaint and summons was mailed to each defendant.
5. Make a copy of the affidavit or affirmation of service of process and keep it for your own records.
6. File the original amended complaint and original affidavit or affirmation of service of process with the Pro Se Office.
7. If you have not added new defendants in your amended complaint, you must serve the amended complaint on the defendant who has not yet been properly served. If you have added new defendants, the Court will issue an amended summons which must be served with the amended complaint. If you are adding defendants, you must bring this to the attention of the Pro Se Writ Clerk.
8. Have a copy of the amended summons and a copy of the amended complaint served pursuant to Rule 4 of the Federal Rules on any defendant who was not previously served with the original complaint.
9. Have the person who served the amended summons and the amended complaint to each of the new defendants complete an affidavit or affirmation of service of process form.
10. Make a copy of the affidavit or affirmation of service of process.
11. Attach the affidavit or affirmation of service of process to the amended summons.
12. File the original amended summons and the original affidavit or affirmation of service of process with the Pro Se Office.
If you have questions regarding any of the procedures listed above, please contact the Pro Se Office at 718-613-2665.
Tara D. Hunter-Hicks and Ralph Vega, Jr. Pro Se Writ Clerks Attn : Pro Se Office United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201 8:30AM — 5:00PM (718) 613-2665