Vereen v. Ny State

Decision Date26 October 2015
Docket Number15-CV-3655 (SJF)(AYS)
CourtU.S. District Court — Eastern District of New York

FEUERSTEIN, District Judge:

I. Introduction

On June 22, 2015, incarcerated pro se plaintiff Sha-King D. Vereen ("plaintiff") filed a complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against New York State ("the State"), Nassau County ("the County"), the Hempstead Police Department ("HPD") and the Nassau County Police Department ("NCPD") (collectively, "defendants"), accompanied by an application to proceed in forma pauperis. On July 22, 2015, plaintiff filed an application for the appointment of pro bono counsel to represent him in this case.

Since plaintiff's financial status, as set forth in his declaration in support of the application to proceed in forma pauperis, qualifies him to commence this action without prepayment of the filing fee, see 28 U.S.C. §§ 1914(a); 1915(a)(1), plaintiff's request to proceed in forma pauperis is granted. However, for the reasons set forth below, the complaint is sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)-(iii) and 1915A(b) and the application for the appointment of pro bono counsel is denied. II. Background1

Plaintiff alleges that on January 6, 2015, "police officers" and "detectives" (collectively, "the police") went to his girlfriend's home and told him that "there was an investigation going on and they felt that [he] was part of th[e] investigation." (Compl. at 6). According to plaintiff, although he "listened and [] complied" with the police and told them that he "had no knowledge of any crime that had taken place," (id. at 6-7), they took him to the Hempstead Armory, where he was questioned and shown pictures of two (2) individuals, one of whom he knew. (Id. at 6-7). According to plaintiff, the police never told him that he "was being place[d] under arrest or anything else." (Id.)

Plaintiff alleges that the police also showed him "another set of pictures" and asked him if he knew the person depicted therein, to which he responded, "yes I do." (Compl. at 7). The police then advised plaintiff that the individual in the picture reported that plaintiff "had beat him up." (Id.) According to plaintiff, he told the police that the individual in the picture had borrowed money from him and then had called him "to come over and pick the money up[,]" (id.), but when he arrived at the designated place, the individual told him that he did not have the money and that his girlfriend was bringing it. (Id.) Plaintiff alleges that he "sat for a while and [the girlfriend] never came but she kept callin[g] but never showed up." (Id.) Eventually, the individual in the picture "just gave up on his girlfriend and told [plaintiff] that [he] had to leave[,]" (id.), but plaintiff responded that he "didn't have any money to go anywhere[.]" (Id.)According to plaintiff, the individual "got mad and tried to snatch [him] up and throw [him] out the door[,]" (id.), and, while plaintiff was just talking to him, the individual "swang [sic] on [him]," so he defended himself. (Id.) Plaintiff alleges:

"[t]here was no robbery at all [the individual in the picture] told me to come over and pick up my $250.00 but when i [sic] arrived he told me to wait because his girlfriend was coming back but never showed up. He tried to manhandle me instead of politely asking me if i [sic] could come back but he didn't he swung i [sic] defended myself."


Plaintiff alleges that the police then arrested him and "accused [him] of 18 charges from assault to robbery on both case's [sic]." (Compl. at 8.) According to plaintiff, (1) all of the charges are fabricated by the HPD and NCPD, (id.); (2) his indictment by the grand jury "[i]n the case of the robbery and assault in the 2nd degree" violated his due process rights because (a) he was never told that he was being arrested, (b) the police never read him his Miranda rights, and (c) his attorney waived his right to testify before the grand jury without his consent, (id. at 8-9); and (3) his due process rights were violated in "[t]he case with [his] codefendant [sic]" because (a) his co-defendant was identified in both a photo array and a video, but plaintiff was not identified in either the array or the video, nor where his fingerprints found on anything; (b) his co-defendant made a written statement implicating himself, i.e., "that he [the co-defendant] had a plastic gun that he threw away," (c) he is "being accused for something someone else did that [he] had nothing to do with[,]" (d) "[t]here is no evidence of [him] even being there but there is evidence of [his] codefendant [sic] being there," (e) his girlfriend gave a written statement providing him with an alibi, and (f) "Martin Hayward [] lied to the police and [plaintiff] was arrested for it." (Id. at 9).

Plaintiff seeks his "freedom" and damages in the amount of five hundred thousand dollars ($500,000.00). (Id. ¶ V, and Supplement to the Complaint [Docket Entry No. 5]).

III. Discussion

A. Standard of Review

Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma pauperis statute, 28 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant with immunity. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding both Section 1915 and Section 1915A to be applicable to a prisoner proceeding in forma pauperis).

It is axiomatic that district courts are required to read pro se complaints liberally, see Gerstenbluth v. Credit Suisse Sec. (USA) LLC, 728 F.3d 139, 142-43 (2d Cir. 2013), and to construe them "to raise the strongest arguments that they suggest." Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume "all well-pleaded, nonconclusory factual allegations in the complaint to be true." Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010), aff'd, — U.S. —, 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50, 173 L. Ed. 2d 868 (2009)); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).

Nevertheless, a complaint must plead sufficient facts to "state a claim to relief that isplausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). While the plausibility standard "does not require detailed factual allegations," it "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1937).

B. Section 1983

Section 1983 of Title 42 of the United States Code provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . ."

42 U.S.C. § 1983. "Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights 'under color' of state law." Filarsky v. Delia, --- U.S. ----, 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012). To state a claim under § 1983, a plaintiff must allege: (1) that the challenged conduct was "committed by a person acting under color of state law," and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (citation omitted); see also Rehberg v. Paulk, --- U.S. ----, 132 S. Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).

1. Claims against the State

"A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense." Coleman v. Court of Appeals of Maryland, --- U.S. ----, 132 S. Ct. 1327, 1333, 182 L. Ed. 2d 296 (2012). Absent consent, the Eleventh Amendment to the United States Constitution bars suits in federal court by private parties against a State. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993) ("Absent waiver, neither a State nor agencies acting under its control may be subject to suit in federal court." (quotations and citation omitted)); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ("[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment."). "Sovereign immunity principles enforce an important constitutional limitation on the power of the federal courts." Sossamon v. Texas, 536 U.S. 277, ----, 131 S. Ct. 1651, 1657, 179 L. Ed. 2d 700 (2011); see also Pennhurst State, 465 U.S. at 98, 104 S. Ct. 900 ("[T]he principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III[.]")

A State's consent to suit must be "unequivocally expressed," Pennhurst State, 465 U.S. at 99, 104 S. Ct. 900, and "may not be implied." Sossamon, 563 U.S. at ----, 131 S. Ct. at 1658. "Generally, [courts] will find...

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