Opinion
5:22-CV-1030 (MAD/ML)
02-17-2023
DOMINIC PARTON; and D.L., a minor, Plaintiffs, v. THE CITY OF SYRACUSE; CITY OF SYRACUSE OFFICE OF THE MAYOR BEN WALSH; ONONDAGA CNTY. DISTRICT ATTORNEY WILLIAM J. FITZPATRICK; and SYRACUSE POLICE DEP'T, Defendants.
APPEARANCES: OF COUNSEL: DOMINIC PARTON Pro se Plaintiff Five Points Correctional Facility D.L. Pro se Plaintiff (full address not provided)
APPEARANCES: OF COUNSEL:
DOMINIC PARTON
Pro se Plaintiff
Five Points Correctional Facility
D.L.
Pro se Plaintiff
(full address not provided)
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent this Pro se Complaint (Dkt. No. 1) together with (1) an amended in forma pauperis application, and (2) a motion to appoint counsel to the Court for review. (Dkt. Nos. 1, 3, 5.) For the reasons discussed below, I (1) grant Plaintiff Parton's amended in forma pauperis application, (2) deny Plaintiff Parton's motion to appoint counsel, and (3) recommend that the Complaint be dismissed in its entirety without leave to amend. (Dkt. Nos. 1, 3, 5.)
I. BACKGROUND
Construing the Complaint as liberally as possible, Plaintiff Dominic Parton (“Plaintiff Parton”) brings this action on behalf of his minor son (“D.L.”). (See generally Dkt. No. 1.) Plaintiff Parton invokes the Court's federal question jurisdiction pursuant to 42 U.S.C. § 2000e-5 and the Complaint is a form complaint pursuant to Title VII of the Civil Rights Act as amended. (Id.) Named as defendants are The City of Syracuse, City of Syracuse Office of the Mayor Ben Walsh, Onondaga County District Attorney William J. Fitzpatrick, and the Syracuse Police Department (collectively “Defendants”). (Dkt. No. 1 at 1, 3.)
Plaintiff Parton alleges that on November 26, 2020, at approximately 3 a.m., D.L. was shot three times with an “AR-15 Assault Rif[]le, while asleep at his counsin[']s house” on Butternut Street in the City of Syracuse. (Dkt. No. 1 at 3.) The Complaint alleges that D.L. was treated at Upstate hospital and released several hours later. (Id.) The Complaint alleges that the Syracuse Police officers investigating the shooting should be relieved of their duties and the Federal Bureau of Investigation should take over the case. (Id. at 4.) In addition, the Complaint alleges that Defendant District Attorney of Onondaga County William J. Fitzpatrick and City of Syracuse Mayor Ben Walsh “need[] to use outside resources and include the FBI, ATF, [and] Sheriff[']s Department” to confiscate the gun used in the shooting and to sarrest the suspect. (Id.) Finally, the Complaint alleges that Upstate Hospital “needs to follow up with D.L. and make sure that D.L. continues to receive proper medical treatment, including medication.” (Id.)
The Complaint does not appear to assert any causes of actions but states that Plaintiff Parton “and Gawelhonh Lazore Parents to D.L. request that this Court grant all 3 Plaintiffs $20,000,000 million dollars for pain and suffering, failure to provide [adequate] medical care, and for failing to arrest the suspects for shooting our son D.L.” (Id. at 5.)
Plaintiff Parton also filed an amended application to proceed in forma pauperis. (Dkt. No. 5.)
II. PLAINTIFF PARTON'S AMENDED APPLICATION TO PROCEED IN FORMA PAUPERIS
“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
Upon review, the Court finds that Plaintiff Parton has submitted a completed amended IFP application which has been certified by an appropriate official at his facility (Dkt. No. 5), and which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization required in the Northern District. (Dkt. No. 7.)
Accordingly, Plaintiff Parton's amended application to proceed with this action IFP is granted. (Dkt. No. 5.)
III. RELEVANT LEGAL STANDARD GOVERNING INTIAL REVIEW OF A COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is 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).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
“[E]xtreme caution should be exercised in ordering sua sponte dismissal of a . . . complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).
IV. ANALYSIS
Having reviewed the Complaint, and construing the allegations liberally, I recommend that all causes of action be dismissed.
A. Claims on Behalf of D.L.
A nonlawyer parent ordinarily cannot represent a child's interests Pro se. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (holding that it is “a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child”). Minors “are entitled to trained legal assistance so their rights may be fully protected” and nonlawyer parents are not trained to represent competently the interests of their children. Cheung, 906 F.2d at 61. Moreover, “a district court has a duty to raise this issue sua sponte.” Thomas v. Astrue, 674 F.Supp.2d 507, 511 (S.D.N.Y. 2009).
“In determining whether a non-attorney individual is attempting to bring an action on behalf of another, the ‘threshold question' is ‘whether a given matter is plaintiff's own case or one that belongs to another.'” Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002) (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). Here, Plaintiff Parton purports to assert claims on behalf of his child, D.L. Plaintiff Parton, however, cannot bring claims on behalf of D.L. without counsel. As a result, I recommend that the Court dismiss without prejudice any claims Plaintiff Parton is asserting on behalf of D.L.
B. Claims on Plaintiff Parton's Behalf
To the extent that the Complaint is construed as attempting to assert claims on Plaintiff Parton's own behalf, I recommend that those claims be dismissed.
1. Claims Against the Syracuse Police Department and the City of Syracuse Office of the Mayor Ben Walsh
“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 . . . 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, 18-CV-1471, 2019 WL 981850, at *3 (N.D.N.Y. Jan. 7, 2019) (Peebles, M.J.) (citing Krug v. Cnty. of Rennselaer, 559 F.Supp.2d 223, 247 (N.D.N.Y. 2008) (McAvoy, J.); Turczyn ex rel. McGregor v. City of Utica, 13-CV-1357, 2014 WL 6685476, at *2 (N.D.N.Y. Nov. 26, 2014) (Sharpe, J.); Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999) (“Under New York law, a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence. Therefore, municipal departments like the Department of Social Services are not amenable to suit and no claims lie directly against the Department.”)), report and recommendation adopted by, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (Suddaby, C.J.). Thus, Defendants Syracuse Police Department and the City of Syracuse Office of the Mayor Ben Walsh are not proper parties amenable to suit.
2. Claims Against the Onondaga District Attorney William J. Fitzpatrick
Plaintiff's claims against Defendant Onondaga County District Attorney William J. Fitzpatrick-which seek monetary damages-are barred by the Eleventh Amendment to the United States Constitution. “Stated as simply as possible, the Eleventh Amendment means that, as a ‘general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity,' or unless Congress has ‘abrogate[d] the states' Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the Fourteenth Amendment.'” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Woods, 466 F.3d at 236. “‘When prosecuting a criminal matter, a district attorney in New York State, acting in a quasi-judicial capacity, represents the State not the county.'” Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993) (quoting Baez v. Hennessy, 853 F.2d 73, 77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989)).
As a result, Plaintiff's claims against Defendant Onondaga County District Attorney William J. Fitzpatrick are barred by the Eleventh Amendment. See Best v. Brown, 19-CV-3724, 2019 WL 3067118, at *2 (E.D.N.Y. July 12, 2019) (dismissing the plaintiff's claim against the Office of the Queens County District Attorney as barred by the Eleventh Amendment); see also D'Alessandro v. City of New York, 713 Fed.Appx. 1, 8 (2d Cir. 2017) (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993)) (“[I]f a district attorney or an assistant district attorney acts as a prosecutor, she is an agent of the state, and therefore immune from suit in her official capacity.”); Rich v. New York, 21-CV-3835, 2022 WL 992885, at *5 n.4 (S.D.N.Y. Mar. 31, 20221) (“any claims Plaintiff may raise against the DA Defendants in their ‘official capacity' would be precluded by immunity under the Eleventh Amendment.”); Gentry v. New York, 21-CV-0319, 2021 WL 3037709, at *6 (N.D.N.Y. June 14, 2021) (Lovric, M.J.) (recommending dismissal of the plaintiff's claims against the defendant assistant district attorneys in their official capacities-which were effectively claims against the State of New York-as barred by the Eleventh Amendment), adopted by Gentry v. New York, 2021 WL 3032691 (N.D.N.Y. July 19, 2021) (Suddaby, C.J.).
To the extent that the Complaint is construed as asserting claims against Defendant Onondaga County District Attorney William J. Fitzpatrick in his individual capacity, I recommend that those claims be dismissed based on the doctrine of prosecutorial immunity. Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972) (holding that prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.”).
3. Claims Against the City of Syracuse
Plaintiff does not have standing to compel any law enforcement agency to prosecute suspected criminal acts because there is no private right of action to enforce state or federal criminal statutes. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”); see also Walker v. CIBC Ltd., 20-CV-1337, 2021 WL 3518439, at *5 (N.D.N.Y. Apr. 13, 2021) (Hummel, M.J.) (“It appears plaintiff is either seeking the criminal prosecution of an individual or individuals or a law enforcement investigation, which is beyond this Court's jurisdiction.”), report-recommendation adopted by 2021 WL 3204860 (N.D.N.Y. July 29, 2021) (McAvoy, J.); McFadden v. Ortiz, 12-CV-1244, 2013 WL 1789593, at *3 (N.D.N.Y. Apr. 26, 2013) (D'Agostino, J.) (holding that “there is no private right of action to enforce either state or federal criminal statutes.”).
Moreover, this Court does not have authority to commence its own investigation, commence criminal prosecution, compel a law enforcement agency to investigate suspected criminal activity, or compel a prosecutor to prosecute. As a result, I recommend that Plaintiff's claims against Defendant City of Syracuse be dismissed. See Shidagis v. Broome Cnty. D.S.S., 23-CV-0031, 2023 WL 198143, at *2-3 (N.D.N.Y. Jan. 17, 2023) (Lovric, M.J.) (recommending dismissal of the plaintiff's claims to the extent that she was seeking the investigation or prosecution of suspected criminal activity).
4. Claims Against Upstate Hospital
Although not listed as a party in the caption of the Complaint, to the extent that the Complaint is construed as asserting claims against Upstate Hospital, I recommend that those claims be dismissed.
“The court presumes that [the Complaint] is referring to Upstate University Hospital, which is a part of the State University of New York (‘SUNY') Upstate Medical University.” See Guillory v. Upstate Univ. Police, 21-CV-1117, 2021 WL 6274449, at *3 (N.D.N.Y. Dec. 14, 2021) (Baxter, M.J.), report and recommendation adopted by, 2021 WL 35926 (N.D.N.Y. Jan. 4, 2022) (Sharpe, J.). It is well settled that neither the State of New York, nor its agencies, may be sued under § 1983 because Congress did not abrogate the State's immunity for such claims. See Barnes v. New York State Div. of Human Rights, 14-CV-2388, 2016 WL 110522, at *7 (S.D.N.Y. Jan. 8, 2016) (section 1983 did not abrogate states' immunity) (citing inter alia Jones v. New York State Metro D.D.S.O., 543 Fed.Appx. 20, 22 (2d Cir. 2013)). Accordingly, a claim pursuant to 42 U.S.C. § 1983 against the hospital is barred by the sovereign immunity protection of the Eleventh Amendment. See Campbell v. New York City, 12-CV-2179, 2012 WL 3027925, at *3 (E.D.N.Y. July 23, 2012) (“[P]laintiff's § 1983 claims against the Hospital are barred by the . . . Eleventh Amendment because this hospital is a branch of SUNY.”); Dube v. State University of New York, 900 F.2d 587, 594-95 (2d Cir. 1990) (Eleventh Amendment bars § 1983 suit against SUNY, which is an integral part of the State of New York); Ding v. Bendo, 03-CV-1237, 2006 WL 752824, at * 3-4 (E.D.N.Y. Mar. 23, 2006) (dismissing plaintiff's § 1983 claims against SUNY Downstate Medical Center because “SUNY and the defendant doctors in their official capacity enjoy immunity from suit under the Eleventh Amendment”).
C. Claims on Behalf of Ms. Lazore
To the extent that the Complaint is construed as asserting any claims on behalf of Ms. Lazore as D.L.'s other parent, I recommend that those claims also be dismissed. A person who is not an attorney may only represent himself in a Pro se action. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (citing 28 U.S.C. § 1654) (holding that although parties have a statutory right to “plead and conduct their own cases,” unlicensed laypersons may not “represent anyone else other than themselves.”); see also Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010) (“A person who has not been admitted to the practice of law may not represent anybody other than himself.”).
V. OPPORTUNITY TO AMEND
Generally, “[a] Pro se complaint should not be dismissed without the court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation and internal quotation marks omitted); see also FED. R. CIV. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). Leave to amend is not required where “the problem with [the 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).
“Because the defects in [the C]omplaint cannot be cured with an amendment, [I recommend that] the Court decline[] to grant . . . leave to amend [the C]omplaint.” Antonetti, on behalf of C.J.A. v. Dave & Busters 42nd Street Times Square, 23-CV-0101, 2023 WL 1869012, at 5 (S.D.N.Y. Feb. 6, 2023) (declining leave to amend where the complaint sought to assert claims on behalf of the plaintiff's minor son).
VI. PLAINTIFF PARTON'S MOTION TO APPOINT COUNSEL
Plaintiff Parton has also submitted a request for appointment of counsel. (Dkt. No. 3.) As an initial matter, “[a] party has no constitutionally guaranteed right to the assistance of counsel in a civil case.” Lefridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (citation omitted). Furthermore, there is no bright-line test determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-393 (2d Cir. 1997). Rather, the court must carefully consider a number of factors, including whether the indigent's claims seem likely to be of substance. See Leftridge, 640 F.3d at 69 (stating that “[t]he court properly denies the plaintiff's motion for counsel if it concludes that his chances of success are highly dubious.”) (citations omitted).
Because I have recommended dismissal of the instant matter, it cannot be said that Plaintiff Parton's claims are likely to be of substance; therefore, the motion (Dkt. No. 3) must be denied.
ACCORDINGLY, it is
ORDERED that Plaintiff Parton's amended application to proceed IFP (Dkt. No. 5) is GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith. See 28 U.S.C. § 1915(a)(3); and it is further
ORDERED that the Clerk of the Court (1) provide the Superintendent of the facility that Plaintiff Parton has designated as his current location with a copy of Plaintiff Parton's inmate authorization form (Dkt. No. 7) and notify that official that Plaintiff Parton has filed this action and is required to pay the Northern District of New York the entire statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and (2) provide a copy of Plaintiff Parton's inmate authorization form (Dkt. No. 7) to the Financial Deputy of the Clerk's office;
ORDERED that Plaintiff Parton's motion for appointment of counsel (Dkt. No. 3) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that the Complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE BUT WITHOUT LEAVE TO AMEND because it seeks monetary relief from Defendants who are immune from such relief and for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915, 1915A; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order and ReportRecommendation on the parties, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 . 28 U.S.C. § 636(b)(1) (Supp. 2013); FED. R. CIV. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).