Opinion
1:19-CV-1416 (GTS/TWD)
11-25-2019
TIHEEM WILMER, Plaintiff, v. ALBANY COUNTY POLICE, SCOTT GAVENDY, Defendants.
APPEARANCES: TIHEEM WILMER Plaintiff, pro se 2 Kent Street 2nd Floor Albany, New York 12208
APPEARANCES: TIHEEM WILMER
Plaintiff, pro se
2 Kent Street
2nd Floor
Albany, New York 12208 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Pro se Plaintiff Tiheem Wilmer ("Plaintiff") filed a civil complaint against the Albany County Police and Scott Gavendy ("Officer Gavendy") ostensibly of the Albany County Police Department (collectively "Defendants") alleging Defendants violated his constitutional rights. (Dkt. No. 1.) This action was originally filed in the Western District of New Yok, however, by order dated October 3, 2019, this case was transferred to the Northern District of New York because Defendants reside within this district. (Dkt. No. 4.) Currently before the Court is Plaintiff's application to proceed in forma pauperis ("IFP Application"). (Dkt. No. 2.) As noted herein, the Court grants Plaintiff's IFP Application, necessitating further review relative to whether the pleading meets 28 U.S.C. § 1915(e)'s sufficiency standards. For the reasons discussed below, the Court finds Plaintiff's complaint fails to state a claim for which relief can be granted and, therefore, recommends Plaintiff's complaint be dismissed with leave to replead.
I. PLAINTIFF'S IFP APPLICATION
A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's IFP Application, the Court finds Plaintiff meets this standard. Therefore, Plaintiff's IFP Application (Dkt. No. 2) is granted.
II. SUFFICIENCY OF THE COMPLAINT
A. Standard of Review
28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "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)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se 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 still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "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). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). Moreover, a pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity 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).
B. Summary of the Complaint
According to Plaintiff, Officer Gavendy performed a warrantless "manual anal body cavity search" on Plaintiff on January 7, 2016. (Dkt. No. 1 at 5.) Additionally, Plaintiff asserts Officer Gavendy used a stun gun or taser to arrest him on January 7, 2016. (Id.) Based on these facts, Plaintiff asserts an excessive force and illegal search claim in violation of the Fourth Amendment to the United States Constitution and the New York Constitution. (Id. at 5, 6.)
The Court notes Plaintiff's lawsuit was filed on May 7, 2019, and the alleged incident giving rise to his claims occurred more than three years earlier, on January 7, 2016. In New York, excessive force and illegal search claims are subject to a three-year statute of limitations. See Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). However, because statute of limitations is an affirmative defense and waived if not raised in the answer to the complaint, Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 967 F.2d 742, 752 (2d Cir. 1992), the Court does not recommend dismissing his claims on this basis at this time.
C. Analysis
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging claims sounding in excessive force and illegal search. (Dkt. No. 1.) As a general matter, section 1983 "establishes a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). "Section 1983 'is not itself a source of substantive rights[,]' . . . but merely provides 'a method for vindicating federal rights elsewhere conferred[.]'" Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 (1979)). To state a claim pursuant to section 1983, a plaintiff must allege "(1) 'that some person has deprived him of a federal right,' and (2) 'that the person who has deprived him of that right acted under color of state . . . law.'" Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
a. Officer Gavendy - Excessive Force and Illegal Search
"[C]laims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen [are] analyzed under the Fourth Amendment and its 'reasonableness' standard[.]" Graham v. Connor, 490 U.S. 386, 395 (1989). The standard governing excessive force is "whether the officers' actions [were] 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (citations omitted). "[T]he Second Circuit has held that even minor injuries, including scrapes and bruises, can support an excessive-force claim." Matthews v. City of New York, 889 F. Supp. 2d 418, 442 (E.D.N.Y. 2012).
"A 'search' in the context of the Fourth Amendment occurs when the police intrude upon a person's reasonable expectation of privacy or if the police otherwise trespass upon one's person, house, papers, or effects for the purpose of acquiring information." Jennings v. Decker, 359 F. Supp. 3d 196, 207-08 (N.D.N.Y. 2019) (citations omitted). "In narrow circumstances, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction" as long as the suit "would not necessarily imply that the plaintiff's conviction was unlawful." Corely v. Vance, No. 15 Civ. 1800 (KPF), 2015 WL 4164377, at *4 (S.D.N.Y. June 22, 2015).
Here, Plaintiff did not allege any facts regarding his arrest and subsequent search and has therefore failed to plead a viable excessive force or illegal search claim. Notably, neither the use of a stun gun to effectuate a lawful arrest or a body cavity search are per se unconstitutional and rather require a consideration of the factual circumstances surrounding each. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x 592, 595 (2d Cir. 2010) (summary order) (stun gun); Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 338 (2012) (strip search). In other words, Plaintiff's allegations that Officer Gavendy conducted a "warrantless" search and assaulted him are conclusory and unsupported by any factual enhancement. Accordingly, the Court recommends these claims be dismissed with leave to replead to expound on the factual details of his claims including the circumstances leading to his arrest and its aftermath.
Moreover, Plaintiff references the New York State Constitution as a basis for these claims. (Dkt. No. 1 at 5, 6.) "The New York State Constitution provides a private right of action where remedies are otherwise unavailable at common law or under § 1983." Allen v. Antal, 665 F. App'x 9, 13 (2d Cir. 2016) (summary order) (citing Brown v. State of New York, 89 N.Y.2d 172, 192, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996)). Thus, the Court recommends dismissing these claims because alternative remedies are available—if properly pled—under Section 1983. See Clayton v. City of Poughkeepsie, No. 06 CIV.4881 SCR, 2007 WL 2154196, at *7 (S.D.N.Y. June 21, 2007) (citing cases).
b. Albany County Police Department
Plaintiff identifies the Albany County Police Department as a Defendant in the caption of his complaint, yet makes no factual allegations against this Defendant in the body of the complaint. (Dkt. No. 1.) Nonetheless, "[a] police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity." Baker v. Willett, 42 F. Supp. 2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Jackson v. Cty. of Nassau, 07-CV-245, 2010 WL 335581, at *5 (E.D.N.Y. Jan. 22, 2010) ("Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued."); see, e.g., La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) ("Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department."); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) ("Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.").
Therefore, the Court recommends dismissing all claims against the Albany County Police Department with prejudice. However, in deference to Plaintiff's pro se status, the Court recommends that Plaintiff be provided with an opportunity to amend his complaint to clarify claims, if any, he intended to allege against the appropriate municipality.
The Second Circuit has directed district courts to grant leave to pro se litigants to amend their complaints to name the municipality in which a police department sits as the real party in interest when a case is dismissed against a police department on the grounds that it is not an entity capable of being sued. See Morris v. New York City Police Dep't, 59 F. App'x 421, 422-23 (2d Cir. 2003) (summary order) (directing the district court to permit amendment of the complaint to name the City of New York as a defendant when the suit was dismissed against the New York City Police Department on the grounds it was not a suable entity).
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED; and it is further
Plaintiff should note that 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 the Complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE as against the Albany County Police Department with leave to replead and substitute the appropriate municipal entity as the real party in interest; and it is further
RECOMMENDED that the Complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND as against Officer Gavendy; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy 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).
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. 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)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: November 25, 2019
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge