Elmore v. Onondaga Cnty. Sheriffs
| Docket Number | 5:23-cv-00508-GTS-TWD |
| Decision Date | 29 June 2023 |
| Parties | ISHMEAL ELMORE, Plaintiff, v. ONONDAGA COUNTY SHERIFFS et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
ISHMEAL ELMORE Plaintiff, pro se 1012 Cadillac St. Apt. 1 Syracuse, NY 13208
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent the Court a civil rights complaint filed by Ishmeal Elmore (“Plaintiff”) for initial review pursuant to 28 U.S.C. § 1915. (Dkt. No. 1.) Plaintiff filed a motion to proceed in forma pauperis (“IFP”), and he also requests the appointment of counsel. (Dkt. Nos. 2, 3.) For the reasons discussed below the undersigned recommends the Court conclude Plaintiff's Fourth Amendment claim brought pursuant to 42 U.S.C. § 1983 for an unreasonable search survives initial review and requires a response. (See Dkt. No. 1.) The undersigned further recommends the Court dismiss Plaintiff's other claims with leave to amend. See id.
Plaintiff has not paid the filing fee for this action and seeks leave to proceed IFP. (Dkt. No. 2.) After reviewing Plaintiff's application, this Court finds he is financially eligible for IFP status. Therefore, Plaintiff's IFP application is granted.
Having found Plaintiff meets the financial criteria for commencing this action IFP, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915(e).
Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The Court shall dismiss a complaint in a civil action if the Court determines it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
A claim is frivolous when it “lacks an arguable basis either 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); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[A]n action is frivolous when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”) (internal citation and quotations omitted).
A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “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). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotations, citation, and alterations omitted); see also Fed.R.Civ.P. 8(a)(2).
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). “[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.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants. See Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990). The court should exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original) (citations omitted). While the Court will generally afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal, leave to amend pleadings may be denied when any amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
On August 1, 2022, at approximately 5:30PM, Plaintiff was pulled over by Onondaga Sheriff's Deputy C. Atieh, shield number 2911, in the parking lot of Hometown Inn located at 6611 Old Collamer Rd. S., East Syracuse, NY 13057. (Dkt. No. 1 at 5.) Deputy Atieh told Plaintiff he pulled him over due to his car's illegal window tint. Id. Plaintiff claims his vehicle “met all DMV requirements to operate on New York State roadways.” Id. Plaintiff nonetheless handed Deputy Atieh his license and other requested documents and Deputy Atieh returned to his vehicle. Id. While Deputy Atieh was in his vehicle, Unknown Sheriff's Deputy arrived on the scene.[1] Id. Deputy Atieh and Unknown Sheriff's Deputy then approached each side of Plaintiff's vehicle. Id. Plaintiff explained to both officers he was returning to his hotel room with his passenger, then-girlfriend Monica Landry, for the evening. Id.
Deputy Atieh then stated he smelled marijuana coming from Plaintiff's vehicle and saw a marijuana cigarette, or “joint,” in his ashtray. Id. Ms. Landry told the officers “the joint's mine,[] I was smoking it earlier, and he . . . does not smoke marijuana.” Id. Plaintiff repeated that the joint was not his and he does not smoke marijuana. Id. Deputy Atieh directed Plaintiff to get out of his vehicle and he complied. Id. Deputy Atieh ushered Plaintiff to the back of his vehicle, told Plaintiff he was going to be frisked for weapons, and then “roughly” frisked Plaintiff in front of the “growing crowd of other hotel guests and on-lookers.” Id. Deputy Atieh then told Plaintiff he was going to conduct a field sobriety test. Id. Plaintiff repeated that he was not under the influence of marijuana and does not smoke marijuana. Id. While Deputy Atieh conducted the sobriety test, Unknown Sherriff's Deputy told Ms. Landry to exit and move away from Plaintiff's vehicle so he could conduct a search. Id. Plaintiff told Deputy Atieh he did not consent to a search of his vehicle and “what his partner [was] doing is illegal.” Id. Unknown Sheriff's Deputy continued to search the vehicle for “the next five minutes.” Id.
During the sobriety test, Plaintiff was “unexpectedly and roughly pulled backwards from behind by an unknown arriving officer” and was “tripped by that officer's foot.” Id. at 6. “While stumbling trying to gain footing,” Plaintiff “was tackled to the ground extremely roughly” and approximately six more officers became involved. Id. “From the momentum of being yanked backwards unexpectedly coupled with the added force of being tackled” Plaintiff's head hit the bumper of his car “tremendously hard” which caused him to “temporarily black out” while four to five other officers “took turns bending” his arms and legs “to impossible angles.” Id. One officer then put his knee on Plaintiff's neck, and Plaintiff struggled to breathe. Id. Plaintiff felt “an instinctive sense of panic” as if he was “going to die” with the officer's knee on his neck. Id. Plaintiff “screamed in panic” with “the last breath [he] could muster” that he was “not resisting.” Id. Ms. Landry began to record the incident with her cellphone, but an officer stepped in front of her phone and “shout[ed]” she was not allowed to record. Id. Ms. Landry attempted to side step the officer but was then also placed under arrest. Id.
Plaintiff and Ms. Landry were taken to the Onondaga County Sheriff's Office North Station located at 7120 Henry Clay Blvd., Liverpool, NY 13088. Id. Plaintiff complied with another field sobriety test which he passed “without incident.” Id. Plaintiff and Ms. Landry stayed in the holding cell for over four hours and in the early morning of August 2, 2022, they were transferred to the Onondaga County Justice Center to await arraignment. Id. At his arraignment, the judge ordered Plaintiff to be detained without bail. Id. On August 5, 2022, a preliminary hearing was held and Plaintiff's lawyer, Nikki Platenik, told him “that all physical evidence recovered from the traffic stop ha[d] been suppressed and that [he] was due to be released from jail.” Id. Plaintiff was released from jail later that evening. Id.
Plaintiff lists his first cause of action as “Racial Profiling/Unreasonable Search & Seizure.” Id. at 7. Plaintiff alleges his stop, seizure, search of his vehicle, and arrest were “constitutionally unreasonable” and was the result of racial profiling because there was “no probable cause.” Id. He also alleges his incarceration violated his Fourth Amendment rights. Id. Liberally construed, Plaintiff alleges Deputy Atieh, Unknown Sheriff's Deputy, and the Onondaga County Sheriff falsely arrested, falsely imprisoned, and maliciously prosecuted him.[2]
Plaintiff lists “Excessive Force” as his second cause of action. Id. Plaintiff claims he never resisted arrest and “was compliant throughout the entire encounter.” Id. He alleges “the level of force, tactics, and number of officers employed” to place Plaintiff...
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