ORDER AND REPORT-RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

This Court issued an Order and Report-Recommendation on July 30, 2019, granting George John Kuchma's ("Plaintiff") application to proceed in forma pauperis and recommending his Complaint (Dkt. No. 1) be dismissed without prejudice. (Dkt. No. 4.) On August 23, 2019, Plaintiff filed an amended complaint. (Dkt. No. 9.) Hon. Glenn T. Suddaby, Chief United States District Judge, adopted this Court's Report-Recommendation and directed Plaintiff to, within thirty-days, either notify the court whether his proposed amended complaint (Dkt. No. 9) is the amended complaint on which he wishes to proceed or file a revised amended complaint. (Dkt. No. 10.) Plaintiff did not respond to the Court's order. Accordingly, due to the passage of time, the Court construes Plaintiff's amended complaint (Dkt. No. 9) as the operative complaint and will consider whether it satisfies 28 U.S.C. § 1915(e) pleading standards. For the reasons that follow, this Court recommends Plaintiff's amended complaint be dismissed with prejudice.

I. 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 Complaint1

In September 2017, Plaintiff visited a Stewarts Shop at 425 Court St. in Utica, New York and was accused of shoplifting and told not to return. (Dkt. No. 9 at ¶ 1.) Nearly a year later, at 5:00 a.m. on August 29, 2018, Plaintiff went to the same Stewarts Shop to purchase a pack of cigarettes. Id. at ¶ 2. Plaintiff alleges he purchased cigarettes with no incident and went to an outdoor picnic table to smoke a cigarette. Id. at ¶¶ 3, 4. He noted two Utica Police Officers were near him and he engaged the officers in conversation. Id. at ¶¶ 5, 6. One of these officers was Sergeant Abel. Id. at ¶ 5.

According to Plaintiff, Sergeant Abel asked Plaintiff whether he knew the manager of the Stewarts Shop did not want Plaintiff on the property. Id. at ¶ 7. Plaintiff replied the previous incident occurred nearly a year ago and he had just bought cigarettes, so he did not think it was a problem. Id. ¶ 8. Plaintiff asserted he told the officers he would leave after using the free air pump to re-fill air in his bicycle tire. Id. at ¶ 9.

Rather than letting him leave, Plaintiff alleges Sergeant Abel placed Plaintiff under arrest and ordered him to put his hands behind his back. Id. at ¶ 10, 11. Plaintiff asserts he obeyed Sergeant Abel's orders and Sergeant Abel "tightly applied hand cuffs." Id. at ¶ 12. According to Plaintiff, Sergeant Abel then pulled on the handcuffs hard enough to cut into the skin on his left wrist. Id. at ¶ 13. Plaintiff was next placed in the rear of a police car and transported to the police station for processing. Id. at ¶ 14. Plaintiff stated the booking officer noted his hands were bloody when he removed his handcuffs. Id. at ¶ 16. Plaintiff claims he spent approximately 45 minutes in the handcuffs. Id. at ¶ 18. Plaintiff was issued a citation for trespassing. Id. at ¶ 15.

Based on the foregoing, the Court construes the amended complaint as asserting three causes of action pursuant to 42 U.S.C. § 1983. First, Plaintiff alleges Sergeant Abel did not have probable cause to arrest him for trespassing and, therefore, his detainment violated the Fourth Amendment to the United States Constitution. Id. at ¶¶ 19-23. Second, Plaintiff alleges the level of force used to effectuate his arrest was unreasonable in violation of the Fourth Amendment's prohibition against excessive force. Id. at ¶¶ 24-28. Specifically, he argues Sergeant Abel knew or should have known that applying handcuffs tightly and then exerting upward force on the handcuffs would cause an injury. Id. at ¶ 26. Plaintiff also attached photos of his wrists taken on the day of the arrest and then again 20-days later to demonstrate the injury he suffered as a result of the handcuffs. (Dkt. No. 9-1.) Finally, Plaintiff appears to assert a municipal liability claim against the Utica Police Department and the City of Utica related to his excessive force claim. (Dkt. No. 9 at ¶¶ 27-28.)

II. ANALYSIS

A. Utica Police Department

The Court notes Plaintiff added the Utica Police Department as a party to this lawsuit. (Dkt. No. 9. at 1-2.) However, "[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 denying Plaintiff's attempt to amend the caption to add the Utica Police Department as a defendant.

B. False Arrest

"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) (internal quotation marks omitted). "A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law." Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). "The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983." Id. (internal quotation marks omitted). "[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Even without probable cause to arrest, "an arresting officer will still be entitled to qualified immunity from a suit for damages if he can establish that there was `arguable probable cause' to arrest." Escalera, 361 F.3d at 743. "Arguable probable cause exists `if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.'" Id. (quoting Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991)); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (stating that, "in situations where an officer may have reasonably but mistakenly concluded that probable cause existed, the officer is nonetheless entitled to qualified immunity") (citations omitted). The test for qualified immunity is "more favorable to the officers than the one for probable cause." Escalera, 361 F.3d at 743.

Here, Plaintiff has failed to cure his complaint from the shortcomings the Court recognized in its initial ruling. (Dkt. No. 4 at 7.) Specifically, the amended complaint still asserts facts that reveal Sergeant Abel had at least arguable probable cause to arrest Plaintiff for criminal trespass. See id. Accordingly, the Court recommends Plaintiff's claim for false arrest be dismissed.

C. Excessive Force — Tight Handcuffing

As the Court discussed in its initial decision, an excessive force claim based on the use of handcuffs turns on the following factors: (1) whether the handcuffs were unreasonably tight; (2) whether the defendants ignored pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists. (Dkt. No. 4 at 8.) Previously, the Court found Plaintiff's excessive force claim was deficient because he failed to address two of those factors, namely: (1) whether he informed Sergeant Abel that the handcuffs were too tight, and (2) the extent of his injury. Id. Plaintiff's amended complaint successfully addressed the extent of his injury but added nothing with respect to whether he complained that the handcuffs were too tight.

However, recently the Second Circuit issued a decision clarifying the law with respect to excessive force claims involving tight handcuffing. To that end, Cugini v. City of New York, 941 F.3d 604 (2d Cir. 2019), held that it was no longer a pre-requisite to a viable excessive force claim for the individual to have specifically voiced protest to the officer that the handcuffs were too tight. Id. at 615. Rather, the touchstone of an excessive force claim regarding tight handcuffing turned on whether a reasonable officer would have known that the force used was excessive. Id. at 614.

Under this framework, the Court finds Plaintiff's complaint adequately alleges an excessive force claim regarding use of handcuffs. Specifically, the photo attached to the complaint allegedly taken the day after the arrest shows lacerations on his wrists (Dkt. No. 9-1), and Plaintiff alleged the handcuffs were bloody after cutting into his skin. (Dkt. No. 9 at ¶¶ 13, 17.) Given these allegations, a reasonable officer in Sergeant Abel's position should have known the handcuffs were too tight.

Nonetheless, Cugini is also instructive regarding its discussion on qualified immunity. When considering whether a defendant officer is entitled to qualified immunity the Court is required to assess whether "under clearly established law, every reasonable officer would have concluded that [the defendant's] actions violated [the plaintiff's] Fourth Amendment rights in the particular circumstance presented by the uncontested facts and the facts presumed in [the plaintiff's] favor." Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017).

The Second Circuit in Cugini dismissed the plaintiff's claims because the officer was entitled to qualified immunity given the state of the law at the time of the arrest. To that end, the Court concluded that, at the time of the plaintiff's arrest (June 26, 2014), "[i]t remained an open question in this Circuit whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Cugini, 941 F.3d at 616. In other words, clearly established law did not require an officer to respond to non-verbal physical manifestations of discomfort regarding tight handcuffing. Id. at 616.

Here, Sergeant Abel is similarly situated to the officers in Cugini in every important aspect. Specifically, the actions at issue here occurred in September 2017, at a time when the law regarding excessive force and handcuffs was not clearly established. See id. (citing Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015); Arroyo v. City of New York, 683 F. App'x 73, 75 (2d Cir. 2017)). To that end, when Sergeant Abel arrested Plaintiff, it was an open question "whether a plaintiff asserting an excessive force claim was required to show evidence that an officer was made reasonably aware of her pain by means of an explicit verbal complaint." Cugini, 941 F.3d at 616. Therefore, absent allegations of such a verbal complaint, the Court finds Sergeant Abel is entitled to qualified immunity on Plaintiff's excessive force claim. Accordingly, the Court recommends dismissing this claim.

D. Municipal Liability

Qualified immunity applies to individuals, not municipalities. Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013) ("Qualified immunity is a defense available only to individuals sued in their individual capacity"). Thus, Plaintiff may still have a viable claim against the city regardless of whether he has no individual claims. As noted in the Court's previous decision, a municipality may not be held liable under that section for the acts of its employees based on a theory of respondeat superior. Monell v. Dep't of Social Servs. of City of New York, 436 U.S. 658, 691 (1978); Blond v. City of Schenectady, No. 10-CV-0598, 2010 WL 4316810, at *3 (N.D.N.Y. Oct. 26, 2010). To sustain a section 1983 claim for municipal liability, a plaintiff must show that he suffered a constitutional violation, and the violation resulted from an identified municipal policy or custom. Monell, 436 U.S. at 694-695.

An "official policy or custom" can be shown in several ways: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent it amounts to deliberate indifference to the rights of those who come in contact with the municipal employees. Dorsett-Felicelli, Inc. v. Cty. of Clinton, 371 F.Supp.2d 183, 194 (N.D.N.Y. 2005) (citing Monell, 436 U.S. at 690-91). "Custom denotes persistent and widespread practices, and thus proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell . . . ." Ahern v. City of Syracuse, 411 F.Supp.2d 132, 139 (N.D.N.Y. 2006) (punctuation and citation omitted).

Plaintiff's allegations in this respect are conclusory and do not state a viable claim. Specifically, two paragraphs in the amended complaint attempt to state a municipal claim. First, paragraph 27 asserts the Utica Police Department has been sued before on excessive force claims. (Dkt. No. 9 at ¶ 27.) However, such a claim—even if true—is irrelevant because being sued is not tantamount to being responsible for instances of excessive force. Moreover, paragraph 27 is not related to handcuffing. Similarly, paragraph 28 merely asserts the Utica Police Department does not have a written policy on handcuffing techniques or the use of force spectrum. Id. at ¶ 28. In sum, the Court finds Plaintiff's amended complaint fails to allege sufficient facts to state a viable municipal liability claim. As such, the Court recommends dismissing Plaintiff's municipal liability claim.

E. Leave to Amend

Normally, when a pro se plaintiff's complaint is facially deficient, he or she is given at least one chance to amend the complaint to state a viable claim. Here, Plaintiff was granted such an opportunity and still failed to state a claim. Given the nature of the claims at issue, the Court finds Plaintiff would be unable to cure the deficiencies in the amended complaint and therefore recommends Plaintiff's amended complaint be dismissed with prejudice. Cuoco, 222 F.3d at 112.

ACCORDINGLY, it is hereby

RECOMMENDED that the amended complaint (Dkt. No. 9) be DISMISSED WITH PREJUDICE; 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.2 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).

Attorneys and Law Firms

Erwin Jackson, pro se.

Ralph J. Reissman and Sara A. Wells of the Nassau County Attorney's Office, Mineola, NY, for defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

*1 On January 17, 2007, pursuant to 42 U.S.C. § 1983, pro se plaintiff Erwin Jackson ("plaintiff" or "Jackson") brought this action against defendants County of Nassau ("the County"), Nassau County Police Department, and the Office of the Nassau County District Attorney alleging that defendants violated plaintiffs rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution. Specifically, Jackson claims that his constitutional rights were violated during his pretrial proceedings when police officers allegedly withheld exculpatory evidence, made perjurous statements, and falsely verified felony complaints against plaintiff when they had no personalknowledge of the underlying facts. Jackson further contends that the County of Nassau has a policy of committing these constitutional violations Jackson also alleges that the County of Nassau has a policy of failing to investigate criminal complaints regarding these types of violations if they are filed by pretrial detainees or criminal defendants. The defendants now move, jointly, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure For the reasons set forth below, defendants' motion is granted

I. FACTS

The Court has taken the facts set forth below from the parties' depositions, affidavits, and exhibits, and from the defendants' respective Rule 56.1 statements of facts.1 Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party-here, the plaintiff See Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2001). Unless otherwise noted, where a party's 56.1 statement or deposition is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.2

A. The Underlying Prosecution

On November 22, 2005, plaintiff Erwin Jackson was arrested by Nassau County police officers for attempted robbery of the Bank of America located in Baldwin, New York, on November 21, 2005 (Defs.' 56.1 Statement ¶ 4.) Plaintiff was brought to the Bellmore police station, where he was questioned about the November 21, 2005 robbery, (Deposition of Irwin Jackson, Defs.' Ex. E (hereinafter "Pl.'s Dep.") at 32-33.) At the station, Jackson was also questioned about other bank robberies. (Id. at 34-35.) Plaintiff was arrested and arraigned on November 23, 2005. He was charged for the November 21 robbery and four additional robberies that had occurred in Nassau County on November 13, 2005, October 1, 2005, September 2, 2005, and July 23, 2005. (Id. at 40-41, Defs.' 56.1 Statement ¶ 5.) Plaintiff was indicted by a grand jury on thirteen counts on December 19, 2005 (Pl.'s Dep. at 44-45.) In June 2006, a pretrial suppression hearing was held, at which Police Officer Joseph Hughes testified (Id. at 45-46.) Plaintiff proceeded to trial on the charges and, on February 6, 2007, was found guilty on nine counts of Robbery in the First Degree (New York Penal Law 160.15) and one count of Conspiracy in the Fourth Degree (New York Penal Law 105.10). (Id. at 53-54) On July 30, 2008, Jackson was sentenced to fifteen years for each of the nine counts of Robber, in the First Degree, plus one year and four months for Conspiracy in the Fourth Degree (Defs.' 56.1 ¶ 8.) Jackson's minimum aggregate sentence was set at twenty-five years, eight months and sixteen days. (Id. ¶ 9.)

B. Officer Hughes

*2 By letter dated September 17, 2006, while a pretrial detainee, Jackson filed three criminal complaints against Police Officer Joseph Hughes with the Nassau County District Attorneys Criminal Complaint Unit. (Id. ¶ 10.) The complaints were based on Officer Hughes's allegedly inconsistent testimony at a pretrial suppression hearing. Jackson alleges that while testifying before the Grand Jury in December 2005, Officer Hughes stated that he observed five black males fleeing a four-door Buick wearing face masks During a subsequent pretrial hearing on July 10, 2006, plaintiff cross-examined Officer Hughes. At that hearing, Officer Hughes stated that only some of the males he observed were wearing face masks. The testimony at the July 10 pretrial hearing was as follows:

(Id. ¶ 12 (citing Ex. AB at 485-86))

Jackson also claims Officer Hughes made a "punishable false written statement" and committed the crime of "offering a false instrument for filing" by verifying and signing five felony complaints against plaintiff, although Officer Hughes had no personal knowledge of the information contained in those complaints and relied on information provided by other officers (Id. ¶¶ 13-14.) According to Jackson, during the pretrial hearing and trial of his co-defendant Paul Henry, Officer Hughes testified that it was police procedure for officers to verify and swear to felony complaints even though they lacked knowledge of the underlying facts or crimes alleged therein. (Pl.'s Dep. at 61.) Jackson also alleges that Hughes testified to this at Jackson's own trial on cross-examination. (Id. at 61-62.)

On September 21, 2006, Assistant District Attorney ("ADA") Thurer transferred plaintiffs perjury complaint against Officer Hughes to ADA Barbara Komblau, Chief of the Public Corruption Bureau. (Id. ¶ 15.) ADA Komblau reviewed plaintiff's complaint against Officer Hughes Because plaintiffs case was still pending and "the issues alleged by plaintiff all pertained to credibility," (Defs.' Ex. K ¶ 6), ADA Komblau notified Daniel Looney, the ADA prosecuting plaintiff, and plaintiffs attorney, Jeffrey Groder, of plaintiffs claims The District Attorney's Office later informed Jackson that it also forwarded the case to the Internal Affairs Bureau of the Nassau County Police Department for administrative action at their discretion. (Pl.'s Dep. at 56, Defs.' 56.1 ¶ 16.) After receiving plaintiffs complaint from the District Attorney's Office, the Nassau County Police Department's Internal Affairs Bureau "determined that plaintiffs complaint against Officer Hughes for perjury was unfounded, since plaintiff had been convicted in a jury trial on February 6, 2007." (Defs.' 56.1 ¶ 18.)

C. Detective Comiskey

*3 Jackson also filed criminal complaints against Detective Joseph Comiskey with the Nassau County District Court. (Pl.'s Dep. at 58-59.) According to Jackson, Detective Comiskey committed "official misconduct" and perjury for allegedly failing to provide plaintiff with "exculpatory material' in July 2006 at a pretrial hearing, and for advising the court that he had turned over all of his notes when, according to Jackson, he had not done so. (Defs.' 561 ¶ 19.) ADA Steven L. Schwartz, Chief of the Nassau County District Attorney's District Court Bureau, investigated these two complaints against Detective Comiskey, and found the claims in them unfounded (Id. ¶ 20.) Plaintiff was subsequently informed that the District Attorney's Office declined to prosecute these complaints. (Id.) These complaints were also reviewed by ADA Komblau, who determined that Detective Comiskey's actions were not a crime. (Id. ¶ 22.) Subsequently, as she had done with the complaint against Officer Hughes, she forwarded the complaints to the Nassau County Police Department Internal Affairs Bureau. (Id. ¶ 22.) ADA Komblau also sent a letter to Jeffrey Groder, plaintiffs trial counsel, informing him of plaintiffs allegations, since they pertained to an incident in which Groder was involved (Id.)

D. The Instant Complaint

Jackson alleges eleven causes of action against the County of Nassau and two of its administrative aims, the Nassau County District Attorney's Office and the Nassau County Police Department, arguing that these entities had unconstitutional policies, practices, and customs that infringed his constitutional rights Jackson asserts three claims specifically against the County of Nassau First, he alleges that the County had a policy of failing to discipline its employees for any alleged perjury or cover-ups with respect to evidence. (Compl at 5, Pl.'s Dep. at 93.) Jackson's second cause of action claims that the County has a policy, practice, procedure and custom of failing to take steps to terminate the unconstitutional practices of "its legal subordinates," defendants Nassau County Police Department and the Nassau County District Attorney's Office. (Compl. at 5, Pl.'s Dep at 93-94) Jackson's third cause of action alleges that the County has failed to properly train and supervise its employees with regard to "the proper constitutional and statutory requirements in the exercise of their authority." (Compl. at 5; Pl.'s Dep. at 94)

Jackson asserts four claims against the Nassau County Police Department. The fourth cause of action in Jackson's complaint alleges that the Nassau County Police Department has a policy that authorizes subordinates to falsely verify and file criminal felony complaints without "knowledge of or knowledge based upon belief' of the underlying facts. (Compl. at 5; Pl.'s Dep. at 95.) The fifth cause of action alleges that the Nassau County Police Department failed to properly train and supervise its employees in the processing of arrestees. (Compl. at 5-6) Specifically, Jackson contends that, due to inadequate training, employees of the Nassau County Police Department do not realize "that they are not authorized to swear or fill out a felony complaint that they have absolutely no knowledge of" (Pl.'s Dep. at 96.) The sixth cause of action in Jackson's complaint claims that the Nassau County Police Department has an illegal practice or custom that condones and sanctions its employees who commit perjury, which is demonstrated by the fact that plaintiff, a pretrial criminal defendant, attempted to file criminal charges against the defendants' subordinates, but the defendants took no corrective actions. (Id. at 96-97, Compl. at 6) Jackson's seventh cause of action alleges that the Nassau County Police Department, as a policy maker, has a defective and illegal policy whereby it does not correct or punish wrongdoings, such as those alleged in causes of action numbers four, five, and six (Compl. at 6, Pl.'s Dep. at 97-98.)

*4 Jackson asserts his four final claims against the Nassau County District Attorney's Office. Jackson's eighth cause of action alleges that the Nassau County District Attorney's Office has a history and practice of ignoring criminal defendants' and arrestees' complaints, ignoring evidence of police misconduct, and shielding police officers and other assistant district attorneys from prosecution (Compl. at 6.) Jackson's ninth cause of action alleges that the Nassau County District Attorney's Office does not give" any credence to pretrial criminal defendants who seek to file and give any credence to pretrial criminal defendants that seek to commence criminal actions in the court against public officials." (Id. at 130) Specifically, plaintiff contends that the Nassau County District Attorney's Office declines to investigate, arrest, and/or prosecute public officials when illegal conduct is alleged by pretrial or criminal defendants. (Compl. at 6-7.) Jackson's tenth cause of action alleges that the Nassau County District Attorney's Office has failed to punish the illegal practices and wrongdoings of their employees and the Nassau County Police Department. (Compl. at 7) Jackson's eleventh and final cause of action contends that the Nassau County District Attorneys Office has a policy and procedure whereby the district court clerk does not submit or file any claims or complaints against a public official made by criminal defendants (Compl. at 7.)

II. PROCEDURAL HISTORY

Jackson filed the complaint in this action on January 17, 2007. The Court granted plaintiff leave to proceed in forma pauperis on January 31, 2007. Defendants filed an answer to the complaint on May 23, 2007 On March 14, 2008, plaintiff filed a motion to amend the complaint. This Court denied that motion on February 13, 2009. On May 15, 2009, defendants submitted their motion for summary judgment and provided pro se plaintiff with the notice required by Local Civil Rule 56.2. Defendant submitted supplemental papers to their motion on June 5, 2009. Plaintiff submitted opposition papers on May 28, 2009.3 Defendants filed their reply to plaintiffs opposition on June 5, 2009. Plaintiff also submitted a motion for sanctions against defendants on June 10, 2009. Defendants submitted their opposition to the motion for sanctions on June 11, 2009. This matter is fully submitted.

III. STANDARD OF REVIEW

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed R.Civ.P. 56(c), Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006) The moving party bears the burden of showing that he or she is entitled to summary judgment See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

*5 Once the moving party has met its burden, the opposing party "`must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted "Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original) Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "`concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment "`merely to assert, a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33)

Where the plaintiff is proceeding pro se, the Court must "construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s]." Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir.2002) (alterations in original) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000)). Though a pro se litigant's pleadings and other submissions are afforded wide latitude, a pro se party's conclusory assertions, completely unsupported by evidence, are not sufficient to defeat a motion for summary judgment. Shah v. Kuwait Airways Corp., ___ F.Supp.2d ____, No. 08 Civ. 7371(GEL), 2009 WL 2877604, at *2 (S.D.N.Y. Sept. 9, 2009) ("Even a pro se party, however, `may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful'" (quoting Auguste v. N.Y. Presbyterian Med. Ctr., 593 F.Supp.2d 659, 663 (S.D.N.Y. 2009))).

IV. DISCUSSION A. Proper Defendants

Plaintiff alleges specific causes of action against the Nassau County Police Department and Nassau County District Attorney's Office as defendants. However, "under New York law, departments that are merely administrative alms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued" See Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y.2002) (dismissing claim against Lynbrook Police Department); see also Hall v. City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002) ("Because plaintiff has named the City of White Plains as a defendant, any claims against the [White Plains Department of Public Safety] are redundant WPDPS does not have its own legal identity, and therefore the claims against it are dismissed"), Polite v. Town of Clarkstown, 60 F.Supp.2d 214, 216 (S.D.N.Y.1999) ("[M]unicipal departments in this State-such as the Clarkstown Police Department-are not amenable to suit, and no claims can lie directly against them."); Wilson v. City of New York, 800 F.Supp. 1098, 1101 (E.D.N.Y.1992) ("The court also dismisses the claims against the New York City Police Department, which cannot be sued independently because it is an agency of the City of New York." (citations omitted)) Plaintiffs allegations against the Police Department are more properly raised in claims against Nassau County, which plaintiff has also brought in his first, second, and third causes of action. Accordingly, the Nassau County Police Department is dismissed as a defendant

*6 For the same reason, plaintiff cannot bring claims against the Nassau County District Attorney's Office. See Conte v. County of Nassau., No 06-CV-4746 (JFB)(ETB), 2008 WL 905879, at *1 n. 2 (E.D N.Y. Mar 31, 2008) (dismissing Section 1983 claims against the Nassau County District Attorneys Office because the entity is an "`administrative arm[ ]' of the same municipal entity-the County ... and thus lack[s] the capacity to be sued") Plaintiffs allegations against the District Attorneys Office are more properly brought as claims against Nassau County Plaintiff has brought substantially the same claims against the District Attorney's Office as he has brought against the County of Nassau. Accordingly, the Nassau Count District Attorney's Office is dismissed as a defendant in this case.4 Because the plaintiff is proceeding pro se, the Court, in its discretion, does not dismiss plaintiffs fourth through eleventh causes of action in their entirety, but rather construes those claims, which are largely duplicative of causes of action one through three, as against the County of Nassau.

B. Section 1983 Liability

As stated supra, Jackson has brought his claims pursuant to Section 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979).5 For claims under Section 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States" Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citation omitted). Here, the parties do not dispute that defendants were acting under color of state law The question presented, therefore, is whether defendants' conduct deprived Jackson of the rights he asserts.

Although pro se plaintiff alleges eleven separate causes of action against the County of Nassau and its administrative aims, at core, the claims alleged by plaintiff in his complaint are as follows. (1) the County of Nassau has a policy or practice of permitting its employees (or employees of its administrative aims) to commit perjury and a policy or practice of failing to discipline its employees who do commit perjury, (2) the County of Nassau has a policy or practice of permitting its police officers to falsely verify criminal complaints, and (3) the County of Nassau has a policy of not investigating, responding to, or prosecuting complaints or cross-criminal complaints of pretrial detainees and criminal defendants that allege crimes and misconduct against police officers and assistant district attorneys (Plaintiffs Opposition (hereinafter "Opp.") at 14.)

Defendants argue that they are entitled to summary judgment on the grounds that Jackson has failed to provide any evidence that would raise a genuine issue of fact as to municipal liability for any of these claims. As set forth below, the Court agrees First, plaintiff has failed to provide any evidence that there was an underlying constitutional violation with respect to his arrest and conviction, which would be a necessary element of any municipal liability claim In fact, under well-settled Supreme Court and Second Circuit precedent, plaintiffs valid conviction precludes him from litigating any of his claims in the instant case because success on such claims (that is, demonstrating his constitutional rights were violated in connection with the investigation and prosecution of his case) would necessarily implicate the unconstitutionality of his conviction. Second, plaintiff has provided absolutely no evidence of an unconstitutional policy or custom of the County of Nassau and, thus, his municipal liability claims against the County cannot survive summary judgment.

(1) Plaintiff Cannot Demonstrate Violation of His Constitutional Rights

*7 To bring a successful Section 1983 claim, plaintiff must first demonstrate that he was injured as a result of a constitutional violation. In the instant case, plaintiff cannot do so. First, Supreme Court precedent prevents a prisoner, like Jackson, from bringing a Section 1983 claim where success on the claim necessarily would implicate the unconstitutionality of the prisoner's conviction or sentence. Second, even assuming this rule did not apply, plaintiff has presented no evidence of any constitutional violations relating to his conviction

a. Heck v. Humphrey

As a threshold matter, although not explicitly raised by defendants, plaintiffs claims fail as a matter of law, by virtue of his conviction. Specifically, the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), entitles defendants to a decision in their favor as a matter of law with respect to these claims.

i. The Heck Rule

In Heck v. Humphrey, the Supreme Court "confronted the question of whether, given the overlap between § 1983 and the federal habeas corpus statute, a prisoner seeking civil damages may proceed with a § 1983 claim where success on the claim necessarily would implicate the unconstitutionality of the prisoner's conviction or sentence." Amaker v. Weiner 179 F.3d 48, 51 (2d Cir. 1999) (citing Heck, 512 U.S. at 480-90) The Supreme Court in that case explained:

512 U.S. at 486-87 (footnote omitted) (emphasis in original); see also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) ("Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence." (emphasis in original))

Thus, pursuant to Heck, courts routinely dismiss claims brought under Section 1983 when such claims bear on the validity of an underlying conviction or sentence See, e.g., Guerrero v. Gates, 442 F.3d 697, 703-04 (9th Cir. 2006) (holding that Heck bars plaintiffs § 1983 claims of wrongful arrest, malicious prosecution, and conspiracy), Amaker, 179 F.3d at 51-52 (holding that Heck applies to Section 1983 conspiracy) Perez v. Cuomo, No. 09 Civ. 1109(SLT), 2009 WL 1046137, at *7 (E.D.N.Y. Apr 17, 2009) ("A § 1983 claim for the violation of the due process right to a fair trial is, in essence, a claim for damages attributable to an unconstitutional conviction.... Since plaintiffs conviction remains valid, plaintiffs claim for violation of his right to a fair trial is not cognizable under § 1983, and must be dismissed as to all defendants[.]") (internal quotation marks and citations omitted); Younger v. City of N.Y., 480 F.Supp.2d 723, 730 (S.D.N.Y.2007) (holding that plaintiffs claims for false arrest/imprisonment and malicious prosecution were barred by his plea of guilty pursuant to Heck); cf. Jovanovic v. City of N.Y., No. 04 Civ 8437, 2006 WL 2411541, at *12 (S.D.N.Y Aug. 17, 2006) (applying Heck to a Section 1983 claim for denial of the right to a fair trial in the context of a statute of limitations issue).

ii. Application

*8 Here, as stated supra, Jackson was convicted after a trial in state court of nine counts of Robbeiy in the First Degree and one count of Conspiracy in the Fourth Degree on July 30, 2008. It is apparent that Jackson is still incarcerated for this conviction and, to date, has been unsuccessful in challenging his conviction or has not even attempted to do so. Under these circumstances, the Supreme Court's holding in Heck precludes plaintiff from bringing claims in this Court under Section 1983 for municipal liability, because a plaintiff bringing such claims must demonstrate a constitutional violation in connection with his conviction, and a successful result in this case on any one of plaintiffs claims would bear on the validity of that underlying conviction.

Indeed, Heck's application to the instant matter is straightforward Plaintiffs complaint claims that he was "subsequently indicted based upon officer Hughes['s] `inaccurate' testimony." (Compl. ¶ 9.) Plaintiff also contends that during his pretrial hearings there was extensive "late disclosure of [exculpatory] material." (Id. ¶ 11.) Although it is true that not all claims brought under Section 1983 necessarily implicate the validity of the underlying conviction, in this case, plaintiffs assertions of perjury, withheld evidence, and falsely sworn documents during his trial by police officers do necessarily implicate the validity of his conviction and are thus barred by the Heck rule.6 See, e.g., McCloud v. Jackson, 4 F.App'x 7, 10 (2d Cir.2001) ("[Plaintiff] could not assert [municipal liability] claims under § 1983 against the county defendants for holding him in jail because any claim for money damages which, as here, necessarily imputes the invalidity of a conviction, is barred under Heck v. Humphrey, 512 U.S. 477, 484, 486-87 (1994), until such time as the conviction is vacated or otherwise invalidated."); Channer v. Mitchell, 43 F.3d 786, 787-88 (2d Cir.1994) (per curiam) (affirming Heck-based dismissal of claim that police officers committed perjury and coerced witnesses to identify plaintiff wrongfully), Williams v. Schario, 93 F.3d 527, 529 (8th Cir 1996) ("[A] judgment in Williams's favor on his damages claim that defendants engaged in malicious prosecution and presented perjured testimony would `necessarily imply the invalidity of his conviction or sentence'" (quoting Heck, 512 U.S. at 487)), Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir.1996) (per curiam) (affirming Heck-based dismissal of § 1983 claim of conspiracy to "bring unfounded criminal charges" against plaintiff); Jasper v. Fourth Court of appeals, No. 08 Civ. 7472(LAP), 2009 WL 1383529, at *1 (S.D.N.Y. May 18, 2009) ("The Court liberally construes this complaint as asserting that plaintiff was denied his constitutional right to a fair trial. [However, since plaintiffs conviction remains valid, plaintiffs fair trial claim is not cognizable under § 1983, and it must be dismissed as to all defendants[ ]"), Perez, 2009 WL 1046137, at *7 ("A § 1983 claim for the violation of the due process right to a fair trial is, in essence, a claim for damages attributable to an unconstitutional conviction.... Since plaintiffs conviction remains valid, plaintiffs claim for violation of his right to a fair trial is not cognizable under § 1983 and must be dismissed as to all defendants[.]") (internal quotation marks and citations omitted); Fernandez v. Holzbach, No. 3:04 Civ. 1664(RNC), 2007 WI., 1467182, at *1 (D.Conn. May 15, 2007) (holding that plaintiffs allegations that his convictions were based on perjury and fabricated evidence pursuant to a conspiracy to violate his federal rights "necessarily impl[ied] that he was wrongly convicted" and could not be litigated "until he show[ed] that the convictions have been invalidated"), Duamutef v. Morris, 956 F.Supp. 1112, 1115-16 (S.D.N.Y. 1997) (dismissing § 1983 claims for, inter alia, malicious prosecution, false arrest, and perjury during trial due to a failure to state a claim under Heck because of the valid underlying criminal conviction). Thus, in order to bring a cognizable Section 1983 claim in this Court for the harms alleged, plaintiff must first establish the invalidity of his state court conviction

*9 The fact that plaintiff is seeking to assert municipal liability claims against the County of Nassau, rather than against individual defendants, does not vitiate the application of the Heck rule to plaintiffs claims. To prevail against the County of Nassau in his Section 1983 action under any of these theories, a plaintiff must plead and prove: (1) there was an official municipal policy or custom; and (2) that policy or custom caused him to be subjected to a denial of a constitutional right. See Monell v. Dep't Soc. Servs., 436 U.S. 658, 690-91 (1978). There must be a "direct causal link" between the alleged municipal action and the deprivation of the plaintiffs constitutional rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985), see also Lynch v. Suffolk County Police Dep't, No. 07-3684-cv, 2009 WL, 3287565, at *2 (2d Cir. Oct. 14, 2009) ("In order to prevail on a claim against a municipality under Monell, a plaintiff must allege, among other things, that a `municipal policy of some nature caused a constitutional tort'" (citations omitted)). In the instant case, because the Court finds as a matter of law on summary judgment that Heck v. Humphrey prevents a finding that a constitutional violation was committed against plaintiff by any of the defendants, see supra, no Monell claim can lie against the County of Nassau pursuant to § 1983.7 See, e.g., Lynch, 2009 WL 3287565, at *2 ("Insofar as plaintiff alleges that a municipal policy caused prosecutorial misconduct in the trial that led to his felony convictions, plaintiffs claim seeks to `recover damages for [an] allegedly unconstitutional conviction or imprisonment' and is barred by Heck, 51 U.S. at 486." (alteration in original)); Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) ("Because the district court properly found no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell was entirely correct."), accord Vippolis, 768 F.2d at 44 ("A plaintiff who seeks to hold a municipality liable in damages under section 1983 must prove that the municipality was, in the language of the statute, the `person who ... subjected, or cause[d][him] to be subjected,' to the deprivation of his constitutional rights." (citing 42 U.S.C. § 1983)); see also Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir 2002) ("Having concluded that the Appellant has not shown a genuine issue of material fact as to any of the asserted constitutional claims, we therefore conclude that the district court correctly dismissed the Appellant's municipal liability claims.").

In sum, even accepting plaintiffs allegations as true and drawing all reasonable inferences in plaintiffs favor, the Court finds that plaintiff cannot successfully bring a claim because the Heck rule, as a matter of law, prevents plaintiff from demonstrating a violation of his constitutional rights, which is a necessary predicate to any municipal liability claim pursuant to Section 1983.

b. No Evidence of Violation of Plaintiffs Constitutional Rights

*10 Moreover, even assuming that the validity of plaintiff's underlying conviction was not implicated by his claim that the County of Nassau had a policy of ignoring criminal complaints filed by pretrial detainees and criminal defendants, he has presented no evidence to support his contention that the County did not investigate his claims Thus, because there is no evidence from which a rational jury could find a violation of his constitutional rights, there is no predicate for his municipal liability claim.

The only forms of evidence offered by plaintiff on this issue are his bald assertions and the fact that the County did not prosecute Officer Hughes or Detective Comiskey for their alleged misconduct in relation to plaintiffs trial. Plaintiffs exhibits consist merely of copies of the letters and complaints that he filed with Nassau County entities. Plaintiff presents no evidence to contradict the evidence put forth by defendants, which demonstrates that plaintiffs complaints were investigated In two affidavits submitted by ADA Kornblau, former Bureau Chief of the District Attorney's Public Corruption Bureau, she asserts that she personally investigated plaintiffs complaints against the officers. (See Defs.' Exs K, X) According to ADA Komblau's affidavit, upon investigating Jackson's complaints, "[it] was clear from the minutes that [Jackson's] criminal attorney raised the issue of the failure to turn over Rosario material to the trial court, which is the proper venue for such an allegation" (Defs.' Ex K ¶ 4) Subsequently, ADA Kornblau determined that the remainder of plaintiffs claims were unfounded, and declined to prosecute the matter (See id. ¶ 4 ("Subsequent to reviewing Jackson's complaint and after determining that the [complaint] did not allege conduct which constituted a crime, I referred the matter to the Internal Affairs Bureau of the Nassau County Police Department ...."); id. ¶ 6 ("In view of the fact that the trial of this case was still pending, and the issues alleged by [Jackson] all pertained to credibility, I notified Daniel Looney, the Assistant District Attorney assigned to Jackson's prosecution, as well as defense counsel, Jeffrey Groder, of Jackson's claims. I also forwarded Jackson's complaint to the Internal Affairs Bureau of the Nassau County Police Department for whatever administrative action they deemed necessary.").) In a separate affidavit, ADA Steven L. Schwartz, Bureau Chief of the District Court Trial Bureau in the Nassau County District Attorney's Office, states that he personally investigated plaintiffs proposed accusatory instmments and found them to be unfounded; accordingly, they were not prosecuted. (Defs.' Ex. Q ¶ 9.)8

Here, as in Staley v. Grady, 371 F.Supp.2d 411 (S.D.N.Y.2005), "[s]imply because defendants disagreed with plaintiff as to the merits of the proposed [complaint] and chose not to prosecute the same, does not give rise to an equal protection violation." Id. at 417 Here, too, the Nassau County District Attorney's Office received Jackson's criminal complaints, reviewed and investigated them, and declined to prosecute them based upon the conclusion that the complaints were without merit (See Defs.' Exs K, Q.)

*11 In short, due to plaintiffs inability to set forth any evidence from which a rational jury could find a deprivation of his constitutional rights, plaintiffs Monell claims against the County of Nassau cannot survive summary judgment.

(2) Plaintiff Has Set Forth No Evidence to Support a Monell Claim

Even assuming arguendo that plaintiff had put forth evidence to create a genuine issue of fact on whether his constitutional rights were violated, his municipal liability claims still cannot survive sumnary judgment because there is no evidence of a policy, practice or custom to support a finding by a rational jury of municipal liability under Monell.

i. Applicable Standard

Municipalities cannot be heldvicariously liable forme actions of an employee under § 1983. Monell, 463 U.S. at 691 ("[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a muncipality cannot be held liable under § 1983 on a respondeat superior theory.") Thus, "[a] municipality will not be held liable under Section 1983 unless the plaintiff can demonstrate that the allegedly unconstitutional action of an individual law enforcement official was taken pursuant to a policy or custom `officially adopted and promulgated by that [municipality's] officers'" Abreu v. City of N.Y., No 04-CV-1721 (JBW), 2006 U.S. Dist LEXIS 6505, at *11 (E.D.N.Y. Feb. 22, 2006) (quoting Monell, 436 U.S. at 690) (alteration in original). "`[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers." City of Canton, 489 U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)). Thus, an individual's misconduct will not result in respondeat superior liability for his supervisors absent specific allegations that he acted pursuant to an official policy or custom. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). However, "[a] court may draw the inference of the existence of a policy or custom `when a plaintiff presents evidence that a municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Caidor M & T Bank, No. 05-CV-297 (FSJ), 2006 U.S. Dist. LEXIS 22980, at *35-36 (N.D.N. Y. Mar 27, 2006) (quoting Grifm-Nolan v. Providence Wash. Ins. Co., No. 04-CV-1453 (FJS), 2005 U.S Dist. LEXIS 12902, at *10 (N.D.N.Y. June 20, 2005) (quotation omitted)). But, "`the mere assertion that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.'" Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)).

ii. Application

Even if plaintiff could prove that his constitutional rights were violated, whether at trial or by the subsequent failure to prosecute his criminal complaint for the actions by municipal actors at his trial, this is not sufficient to demonstrate a policy or custom by the County of Nassau. "[A] single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Ricciuti, 941 F.2d at 123, see also Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker"); McAllister v. N.Y.C. Police Dep't, 49 F.Supp.2d 688, 706 (S.D.N.Y.1999) (same); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290 (S.D.N.Y.1998) ("[T]he court will not infer the existence of a municipal policy from a single incident."). As discussed supra, "`the mere assertion that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.'" Zahra, 48 F.3d at 685 (quoting Dwares, 985 F.2d at 100).9

*12 Plaintiff's complaint, statements at his deposition, and opposition papers to defendants' motion for summary judgment contain vague allegations regarding the existence of a policy or procedure by the County of Nassau of refusing to investigate criminal complaints of pretrial detainees and criminal defendants. (E.g., Opp at 5-6 ("Plaintiff also stated that he never received any response or letters of acknowledgment from either office though he wrote numerous letters inquiring about the status of his complaints and criminal charges."); Opp at 6 ("The complaints were never investigated and plaintiff never received any response."); Opp at 7 ("During the deposition plaintiff continuously testified to the fact that no one ever investigated nor responded to his complaints and grievances.").) These conclusory allegations as to the existence of a policy or custom are insufficient to withstand summary judgment See Bishop v. Toys "R" Us-NZ LLC, No. 04 Civ. 9403(PKC), 2009 WL 440434, at *4 (S.D.N.Y. Feb. 19, 2009) ("[P]roceeding pro se does not otherwise releive a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1995)). Indeed, mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment" Id. (citing Matsushita, 475 U.S. 574, 587 (1986)); Order, McCrary v. County of Nassau, No. 06 CV 4982(SJF)(ARL) (E.D.N.Y. Sept. 22, 2008) ("Magistrate Judge Lindsay properly found that [p]laintiff had proffered no evidence to support his assertion that a custom, policy and/or practice, which precludes the consideration of criminal charges brought by an accused against police officers and assistant district attorneys, existed" when plaintiff merely asserted that a police officer was "aware of alleged police misconduct regarding Plaintiffs apprehension, [the] affidavits in support of County Defendants' summary judgment motion were not sufficiently detailed, and that there was no record of any investigation having been conducted by [County Defendants] in regards to the [complaints]"). Plaintiff has presented no actual evidence of a policy or custom whereby the County would decline to review the criminal complaints of pretrial detainees or criminal defendants.

The County of Nassau, however, has put forward extensive evidence regarding the policies that it has in place to review criminal complaints filed by all citizens In two separate affidavits, ADA Kornblau affirms that the County does investigate criminal complaints against police officers and ADAs-including those made by pretrial and criminal defendants: "[M]any of the [District Attorney's Public Corruptions Bureau's] cases are referred from members of the public, including direct complaints of police misconduct that the Bureau receives from defendants and/or their attorneys." (Defs.' Ex X. ¶ 5) Similarly, "[t]o facilitate the investigation into complaints by incarcerated individuals including pretrial detainees, the Public Corruption Bureau maintains a hotline in the Nassau County Correctional Center for the purpose of allowing inmates to file complaints directly with the Public Corruption Bureau, without having to have their complaints reviewed first by any other entity, agency, or person." (Id.) Moreover, ADA Kornblau's affidavit states that "[e]ach criminal complaint is afforded individual attention and investigation ... [and if] after investigation, it is determined that a complaint is supported by credible evidence, the Nassau County District Attorneys Public Corruption Bureau will recommend prosecution, after which those cases will be prosecuted in criminal court" (Id. ¶¶ 6-7.).

*13 The County of Nassau has also submitted evidence that the system utilized by the Nassau County District Attorney's Office for examining criminal complaints filed by private citizens does not differentiate between complaints based on the individual who files the complaint ADA Kornblau explains that

(Id. ¶ 8, see also Defs.' 56.1 ¶ 47, Defs.' Ex. W ¶ 11.) In plaintiffs opposition papers, he stated that he did not dispute these facts. (Opp. at 12.)

The County of Nassau also submitted an affidavit from ADA Warren Thurer, the Bureau Chief of the Nassau County Criminal Complaint Unit According to ADA Thurer, "[s]pecifically with respect to allegations of an assistant district attorneys or police offices criminal conduct, such allegations will be individually investigated and if appropriate, will be forwarded to the Public Corruption Bureau of the Nassau County District Attorney's Office." (Defs.' Ex. W ¶ 10, see also Defs' Ex. Q ¶ 10 ("There is no policy, practice, or custom within the Nassau County District Attorney's Office that precludes the consideration, investigation, and/or acceptance of criminal cross-complaints brought by an accused against police officers and/or assistant district attorneys based upon the status of the complainant as a pretrial detainee").) An affidavit provided by ADA Steven L. Schwartz, Bureau Chief of the District Court Trial Bureau in the Nassau County District Attorney's Office, states that

*14 (Defs.' Ex. Q ¶¶ 7-8.) Plaintiff has presented no evidence to contradict the information contained in these affidavits or to suggest otherwise

Nor has plaintiff presented evidence of a policy or custom of committing perjury, withholding evidence, or falsely verifying criminal complaints. Plaintiff has merely asserted that "he can testify based upon personal knowledge to the undisputed facts and that he has credible witnesses and documental evidence to support said factual claims." (Opp. at 11.) Plaintiff has not alleged with specificity other instances of perjury, withheld evidence, or falsified complaints, nor has he presented any other evidence of police officers' commission of perjury, withholding of evidence, or filing of falsely sworn complaints. The County of Nassau, by contrast, has put forward evidence regarding its arrest processing procedures and arrest records (See Defs.' Ex. Z.) Nowhere in the County's arrest policies is false verification of criminal complaints, withholding of evidence, or perjury authorized Furthermore, the "collective knowledge doctrine" or "fellow officer Wile" permits arresting officers to rely upon other law enforcement officers' knowledge to justify probable cause to arrest See Savino v. City of New York, 331 F.3d 63, 74 (2d Cir.2003) ([F]or the purpose of determining whether an arresting officer had probable cause to arrest, `where law enforcement authorities are cooperating in an investigation, the knowledge of one is presumed shared by all'"); Stokes v. City of New York, No 05-CV-0007 (JFB) (MDG), 2007 U.S. Dist. LEXIS 32787, at *17 (E.D.N.Y. May 3, 2007) ("[U]nder the collective knowledge doctrine, defendant Buskey is permitted to rely on knowledge obtained by any other officers during the investigation"), Phelps v. City of New York, No. 04 CIV.8570(DLC), 2006 U.S. Dist LEXIS 42926, at *9-10 (S.D.N.Y. June 29, 2006) ("The rationale behind the [collective knowledge] doctrine is that in light of the complexity of modem police work, the arresting officer cannot always be aware of every aspect of an investigation, sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates Although the doctrine is typically used to establish probable cause for the purpose of admitting evidence at trial, it is equally applicable here As the Supreme Court has recognized, police officers called upon to aid other officers in making an arrest are entitled to assume that the officers requesting aid have acted properly" (internal quotations and citations omitted)). Accordingly, it is not improper for an officer to verify a criminal complaint based upon facts learned from another officer and plaintiff has put forth no evidence of a policy, practice, or custom of Nassau County police officers falsifying information in criminal complaints or committing perjury.

Moreover, the County of Nassau has put forward an affidavit from a former Nassau County ADA, who investigated and prosecuted a complaint against a Nassau County Police Officer in an unrelated matter that alleged that the officer had committed perjury by falsely testifying before the grand jury. (Defs.' Ex. Y ¶¶ 2-5.) That police officer was prosecuted and convicted of perjury in the third degree. (Id. ¶ 18.) In the face of this undisputed evidence of the County prosecuting perjury when it is uncovered, plaintiff has not identified any specific instances of police officers' commission of perjury that were not prosecuted

*15 In sum, the undisputed facts demonstrate the following: (1) plaintiffs conviction prevents him from disputing any alleged constitutional violations relating to his trial, (2) defendants did investigate plaintiffs criminal complaints regarding Officer Hughes's and Detective Comiskey's alleged behavior, (3) defendants do have in place policies and procedures whereby criminal complaints filed by private citizens are investigated-even if those citizens are pretrial detainees or criminal defendants, and (4) the County of Nassau does not have a policy or procedure of permitting its employees to commit perjury, to falsely verify criminal complaints, or to withhold exculpatory evidence at trial. In short, plaintiff has failed to provide any factual support for his conclusory allegations that the defendants have engaged in unconstitutional policies or procedures. Accordingly, defendants motion for summary judgment is granted

C. Motion for Sanctions

The Court has also reviewed plaintiffs motion for sanctions and, for the reasons stated throughout this opinion, finds plaintiffs claims to be without merit Accordingly, plaintiffs motion for sanctions is also denied. See S.E.C. v. Shainberg, 316 F. App'x 1, 2 (2d Cir. 2008).

V. CONCLUSION

For the foregoing reasons, the Court grants defendants' motion for summary judgment in its entirety Because the Court grants defendants' motion for summary judgment in its entirety, it also denies plaintiff's motion for sanctions against defendant

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 the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2010 WL 335581

Attorneys and Law Firms

Quentin La Grande, Albany, NY, pro se.

Nannette R. Kelleher, Bailey, Kelleher Law Film, Albany, NY, for Defendants

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

*1 Plaintiff pro se Quentin La Grande ("Plaintiff' or "La Grande") commenced the instant action against Defendants Robert Helligrass,1 Stephen Kraz2 and the Town of Bethlehem Police Department (collectively, "Defendants") pursuant to 42 U.S.C. § 1983. Complaint (Dkt. No. 1). Presently before this Court is Defendants' Motion to dismiss (Dkt. No. 13) and Plaintiffs Motion for summary judgment (Dkt. No. 12) For the following reasons, Defendants' Motion to dismiss is granted and Plaintiffs Motion for summary judgment is denied

I. BACKGROUND

According to Plaintiff, "[o]n April 1, 2008 I was threaten by Patrol Officer William Craz Patrol Officer called me a `Nigger,' and also threaten to cause bodily harm to me. On April 2, 2008 I met with Seargent R.J. Helliergrass and was interogated, and racial harrassed. On or about April 5, 10, 15, May 6, 8, 10, 15, and June 6, 2008, I have been followed by the Bethlehem Police Department." Compl. at 2. Plaintiff's jurisdictional statement asserts that the Complaint is being brought pursuant to 42 U.S.C. § 1983. Id. at 1.

In lieu of filing an answer, on March 11, 2009, Defendants filed the Motion to dismiss presently before the Court Mot. to Dismiss (Dkt. No. 13). Plaintiff also filed a Motion for summary judgment on February 24, 2009, which is now before the Court. Mot. for Sum Judg. (Dkt. No. 12)

II. DISCUSSIONA. Defendants' Motion to Dismissa. Standard of Review

In order to withstand a motion to dismiss, "a [pleading] must contain sufficient factual matter ... to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A party must plead with such factual detail so as to sufficiently "`nudge [ ](its] claims ... across the line from conceivable to plausible.'" Iqbal, 129 S.Ct. at 1950-51 (quoting Twombly, 550 U.S. at 570) While stating a claim does not require the recitation of detailed factual allegations, it does, however, require facts sufficient to state a claim to relief that is prima facie plausible. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). The Court must accept the allegations in the well-pleaded complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and draw all inferences in favor of the non-moving party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1973), Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir.2006), King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002).

In assessing the legal sufficiency of the Complaint, the Court is mindful that La Grande is a pro se litigant and his submissions are subject to "less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner; 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). The Court must "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments they suggest'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999), see Hemphill v. New York, 380 F.3d 680, 687 (2d Cir.2004) ("It is well-established that `when a plaintiff proceeds pro se the court is obligated to construe his pleadings liberally, particularly when they allege civil rights violations'") (quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004)) However, a plaintiffs pro se status "does not exempt [him] from compliance with relevant rules of procedural and substantive law" Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.1983).

b. Analysis

*2 Defendants move to dismiss Plaintiffs Complaint in its entirety pursuant to Rules 12(b)(6) of the Federal Rules of Civil Procedure.3 Mot. to Dismiss (Dkt. No. 13) at 1. Defendants specifically argue that all causes of action against the Town of Bethlehem Police Department must be dismissed as it is not a legal entity subject to suit under 42 U. S.C. § 1983 and further that Plaintiffs entire Complaint should be dismissed for failing to state a cause of action. Id. at 4.

i. Town of Bethlehem Police Department

The Town of Bethlehem moves to dismiss Plaintiffs Complaint on the ground that it is not susceptible to suit under 42 U. S. C. § 1983. While a municipality may be susceptible to suit under 42 U.S.C. § 1983, a municipal police department is not See Walker v. Waterbury Police Dep't., 08-cv-959 (JG)(AKT), 2009 U.S. Dist. LEXIS 7933, at *5, 2009 WL 261527 (E.D.N.Y. Feb. 4, 2009). "Under New York law, departments which are merely administrative aims of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued." Id. (citing Hall v. City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002)). Accordingly, claims asserted under 42 U.S.C. § 1983 will be dismissed against a municipality's police department. See Walker; 2009 U.S. Dist. LEXIS 7933, at *5, 2009 WL 261527 (internal citation omitted); see also Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y.1999).

Here, Plaintiff has sued the Town of Bethlehem Police Department along with two individual officers of the department. See generally Compl. Plaintiffs Complaint asserts that it is brought pursuant to 42 U.S.C. § 1983 and does not provide any other basis for the claims Id. at 1. Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, Plaintiffs Complaint is dismissed as against the Town of Bethlehem Police Department.

Even assuming arguendo that Plaintiffs claims against the Town of Bethlehem Police Department can be construed as a claim against the Town of Bethlehem, Plaintiffs Complaint would still be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

In order to state a cause of action for municipal liability under 42 U. S. C. § 1983, "a plaintiff must allege that the municipality has adopted a custom or policy which is the moving force behind the [alleged constitutional violation)." Zappala v. Albicelli, 980 F.Supp. 635, 649 (N.D.N.Y.1997). A municipality cannot be held liable on the basis of respondeat superior and "a single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy" Campanaro v. City of Rome, 999 F.Supp. 277, 281 (N.D.N.Y.1998); see also Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993).

Plaintiff's Complaint is devoid of any allegations that the Town of Bethlehem had a policy or custom of violating constitutional rights, nor does plaintiff allege or even allude that the Town was deliberately indifferent to his constitutional rights The complete failure to plead such wants dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, as the Complaint fails to state a cause of action for which relief can be granted under 42 U.S.C. § 1983. See Campanaro, 999 F.Supp. at 281; Dwares, 985 F. 2d at 100.

ii. Defendants Kraz and Helligrass

*3 La Grande's Complaint alleges that between April and June 2008, he was "racially harassed," "threatened" and "interrogated" by Defendants Kraz and Helligrass, two officers of the Bethlehem Police Department. Compl. at 2. Specifically, La Grande alleges that on multiple occasions the officers addressed him with a racial epithet and followed him through town. Id. It is well settled in this Circuit that "42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse" Murray v. Pataki, No. 9.03-cv-1263, 2007 U.S. Dist LEXIS 26959, at *22, 2007 WL 956941 (N D.N.Y. Mar 29, 2007) (Kahn, I.) (quoting Gill v. Hoadley, 261 F.Supp.2d 113, 129 (N.D.N.Y.2003)) (collecting cases) "[V]erbal harassment or profanity alone, unaccompanied by an injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983." Murray, 2007 U.S. Dist. LEXIS, at *22 (quoting Moncrieffe v. Witbeck, 2000 U.S. Dist. LEXIS, at *3, 2000 WL 949457 (N.D.N.Y. June 29, 2000)); see also Zeno v. Cropper; 650 F.Supp. 138, 141 (S.D.N.Y.1986) ("vile and abusive language ... no matter how abhorrent or reprehensible cannot form the basis for a § 1983 claim) (internal citation and quotation omitted). Further, "threats do not amount to violations of constitutional rights" Murray, 2007 U. S. Dist. LEXIS, at *23 (quoting Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995)).

In this case, Plaintiffs claim for verbal harassment in the form of racial slurs and threats is not actionable under § 1983 and, therefore, fails to state a claim entitled to relief Compl. at 2.

B. Plaintiff's Motion for Summary Judgment

Even assuming arguendo that this Court did not grant Defendants' Motion to dismiss, Plaintiff's Motion for summary judgment would still be denied Under the Local Rules, "all motions ... require a memorandum of law, supporting affidavit, and proof of service on all the parties." N.D.N.Y.L.R. 71(a) (emphasis added) "All memoranda of law shall contain a table of contents and, wherever possible, parallel citations." Id. at 7.1(a)(1). Further "[a]ny motion for summary judgment shall contain a Statement of Material Facts ... Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion." Id. at 7.1(a)(3) (emphasis in original).

Here, not only did the Plaintiff fail to submit a memoranda of law in support of his Motion for summary judgment and an affidavit but he also failed to submit a Statement of Material Facts. In fact, in his Motion for summary judgment filed on February 24, 2009, Plaintiff explicitly stated, "I will provide this Court with a `Law Memorandum' in support of my motion; such will contain applicable law, and case law. I will submit this to the Court on or before March 6, 2009." Mot. for Sum. Judg. at 1. To date, this Court has nor received said memorandum of law. While this Court recognizes Plaintiffs pro se status, he has failed to comply with all of the Local Rules See Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir.1983) (a plaintiff's pro se status "does not exempt [him] from compliance with relevant rules of procedural and substantive law") Accordingly, Plaintiff's Motion for summary judgment is denied for failing to comply with the relevant rules of procedure See, e.g., N.D.N.Y.L.R. 7.1(a), 7.1(a)(3).

C. Amended Complaint

*4 Plaintiff also moves to amend his Complaint. Response (Dkt. No. 27). While pro se litigants are generally afforded wide latitude and an opportunity to amend, a District Court need not permit an amendment to a Complaint where it would be futile. See Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that although leave to amend should be freely given where justice so requires, a district court need not grant leave if amendment would be futile), Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir.1995).

Here, Plaintiff's Complaint does not state any viable causes of action under 42 U. S. C. § 1983. Further, Plaintiffs Complaint does not state which, if any, of his constitutional rights were violated by Defendants nor does it plead any facts to establish municipal liability. Plaintiff's Complaint also does not plead any facts supporting his allegations that he was "racially harassed," "threatened" or "interrogated." Since, as the Court discussed above, none of the complained of actions provides the basis for a cognizable cause of action, leave to cure these defects would be futile These deficiencies may have been excusable, albeit not cureable, had this Court not previously informed Plaintiff of the requirements for pleading a cause of action under 42 U. S. C. § 1983 against a municipality. See La Grande v. Albany Police Dep't, 1:07-CV-757 (Dkt. No. 4).4 Given that leave to amend would be futile, this Court denies Plaintiff's request.

III. CONCLUSION

Based on the foregoing, it is hereby

ORDERED, that Defendants' Motion to dismiss (Dkt. No. 13) is GRANTED in its entirety; and it is further

ORDERED, that Plaintiff's request to amend his Complaint (Dkt. No. 27) is DENIED; and it is further

ORDERED, that Plaintiff's Motion for summary judgment (Dkt. No. 12) is DENIED in its entirety; and it is further

ORDERED, that the Clerk serve a copy of this Decision and Order on all parties.

IT IS SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2009 WL 2868231

Attorneys and Law Firms

Sylvia Jenkins, Syracuse, NY, pro se.

Hon. Mary Anne Dougherty, Corporation Counsel for City of Syracuse, Catherine Ena Carnrike, Esq., Assistant Corporation Counsel, of Counsel, Syracuse, NY, for Defendants.

MEMORANDUM-DECISION and ORDER

GLENN T. SUDDABY, District Judge.

*1 Currently before the Court, in this pro se civil rights action filed by Sylvia Jenkins ("Plaintiff") against Mr. Liadka, Mr. Sands, John Doe, and Syracuse Police Department ("Defendants"), is Defendants' motion to dismiss Plaintiffs Complaint for insufficient service of process pursuant to Fed. R. Civ. P. 12(b)(5) and/or for failure to state a claim pursuant to Fed.R.Civ. P. 12(b)(6) (Dkt. No. 13.) For the reasons set forth below, Defendants' motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, construed with the utmost of special liberality, Plaintiff's Complaint asserts three claims against Defendants arising from an investigatory stop in September 2010, in Syracuse, New York: (1) a claim that three Syracuse Police Officers unreasonably searched her in violation of the Fourth Amendment, (2) a claim that they unlawfully seized, and failed to return, her personal property in violation of the Fourth, Fifth, and/or Fourteenth Amendments, and (3) a claim that they subjected her to excessive force in violation of the Fourth Amendment. (See generally Dkt. No. 1 [Plf.'s Compl].)

Generally, in support of these claims, Plaintiff alleges as follows (1) on the evening of September 9, 2010, she was stopped on Butternut Street in the City of Syracuse by two officers, who questioned her regarding a call they had received, (2) when she told the two police officers that she did not know what they were talking about and "attempted to go on about [her] business," the officers became "uptight, rude, [and] abnormal in their conversations [and] behavior," and threatened her, (3) the officers then proceeded to conduct a search of "all [of Plaintiff and her] personal property," and, in the process of doing so, twisted her arm and forced her onto the front of their police vehicle, (4) a third police officer arrived, and she was assaulted by all three officers (hereinafter "Defendants"), who hit her on the back and threw her onto the police vehicle; (5) following the deprivation on September 9, 2010, Defendants denied her a post-deprivation remedy through a combination of threats, intimidation and/or non responsiveness, and (6) Defendants took these actions against her intentionally because they did not personally like her, given her previous interactions with the Syracuse Police Department. (Id.)

Plaintiff further alleges that, as a result of this incident, she suffered various injuries and losses, including (1) a "tremendous setback in already tying to recover in an [sic] grave overall manner of my life [and] lifestyle involving officials internally [and] externally," (2) head and back pain, and mental suffering, (3) loss of personal property, and, (4) loss of employment (Id.) As relief, Plaintiff requests an award of twelve thousand dollars ($12,000) in damages. (Id. at 6.)

Familiarity with the remaining factual allegations supporting Plaintiffs three claims is assumed in this Decision and Order, which is intended primarily for review by the parties. (See generally Dkt. No. 1.)

B. Defendants' Motion

*2 On May 6, 2011, Defendants filed a motion to dismiss. (Dkt. No. 13, Attach 2.) Generally, in support of their motion, Defendants assert the following two arguments: (1) because the Complaint was not served within the time allowed by Fed.R.Civ.P. 4 or Local Rule 4.1 of the Local Rules of Practice for this Court, the Court lacks jurisdiction over Defendants in accordance with Fed.R.Civ.P. 4; and (2) the Complaint fails to state a claim upon which relief can be granted, because (a) the Complaint fails to identify what constitutional rights Plaintiff is attempting to vindicate, (b) even if the Complaint has sufficiently identified a constitutional violation, the Complaint fails to allege facts plausibly suggesting the personal involvement of the individual Defendants in any such constitutional violation, (c) the City of Syracuse Police Department does not have the legal capacity to be sued, (d) even if Plaintiffs Complaint can be liberally construed as attempting to assert a claim against the City of Syracuse, the Complaint fails to allege facts plausibly suggesting that the individual Defendants' actions the result of a city policy or custom sufficient to confer municipal liability upon the City, (e) the Fifth Amendment does not govern a plaintiffs deprivation-of-property claim against state actors, (f) the Complaint fails to allege facts plausibly suggesting that force was used or that if force was used it was excessive for purposes of a Fourth Amendment claim, and (g) based on Plaintiffs factual allegations, Defendants Liadka and Sands are protected from liability as a matter of law by the doctrine of qualified immunity. (See generally Dkt. No. 13, Attach. 2.)

On June 2, 2011, Plaintiff filed a response to Defendants' motion. Generally, Plaintiffs response, which is handwritten and three pages in length, states that she "definitely oppose[s] [Defendants'] request" for the dismissal of her Complaint. (See generally Dkt. No. 17.) However, Plaintiffs response does not address the legal arguments asserted by Defendants for the dismissal of Plaintiffs Complaint. (Compare Dkt. No. 17 with Dkt. No. 13, Attach. 2.) Although Plaintiff's response was submitted two days after the expiration of the responsedeadline, the Court has accepted it, out of an extension of special solicitude to her as a pro se civil rights litigant.

In addition, Plaintiff has filed three letters to the Court on the following dates July 6, 2011, August 22, 2011, and January 13, 2012. (Dkt. No. 18-20) Generally, these letters contain assertions that Plaintiff believes that the police are following her, treating her negatively, and responding unsatisfactorily to her telephone calls. (Id.) To the extent that these three letters are intended to constitute papers in opposition to Defendants' motion, the Court will not consider them, because (1) they are not responsive to the motion, and/or (2) they were not submitted in a timely manner. Moreover, to the extent that these three letters are intended to constitute a request for relief, the Court will not consider them, because do not state the relief sought, state with particularity the grounds for seeking the order, and attach a memorandum of law and affidavit, as required by Fed.R.Civ.P. 7(b) and Local Rule 7.1 of the Local Rules of Practice for this Court.

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions to Dismiss for Insufficient Service of Process

*3 Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

Fed.R.Civ.P. 4(m).

The Local Rules of Practice for this Court shorten the service requirements under Fed.R.Civ.P. 4. Specifically, Local Rule 4.1(b) requires "service of process upon all defendants within sixty (60) days of the filing of the complaint This expedited service is necessary to ensure adequate time for pretrial discovery and motion practice. In no event shall service of process be completed after the time specified in Fed.R.Civ.P. 4." N.D.N.Y.L.R. 4.1(b).

B. Legal Standard Governing Motions to Dismiss for Failure to State Claim

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim upon which relief can be granted on either or both of two grounds (1) a challenge to the "sufficiency of the pleading" under Fed.R.Civ.P. 8(a)(2), or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 211, nn. 15-16 (N.D.N.Y.2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

Because such motions are often based on the first ground, a few words on that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show[ ]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.Supp.2d at 212, n. 20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed.R. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212, n. 17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F.Supp.2d at 212, n. 18 (citing Supreme Court cases), Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n. 32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits" 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard Rusyniak, 629 F.Supp.2d at 213, n. 22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-52, 173 L.Ed.2d 868 (2009).

*4 Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.0 § 1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed 2d 80 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." id. at 1965 More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true Id.1

As for the nature of what is "plausible," the Supreme Court explained that "[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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[D]etermining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing 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 show[n]-that the pleader is entitled to relief." Iqbal, 129 S. Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U. S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusoly statements, do not suffice." Iqbal, 129 S.Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.

This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12.2 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.3 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp. 2d at 214, n. 28.

*5 Finally, a few words are appropriate regarding what documents are considered on a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). The court may consider the following documents without triggering the summary judgment standard "(1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference into the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case." Planck v. Schenectady, Cnty., 12-CV-0336, 2012 WL 1977972, at *5 (N.D.N.Y. June 1, 2012) (Suddaby, J.). Moreover, "a pro se plaintiffs papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of [her] complaint-to the extent those papers are consistent with the allegations in the complaint" Planck, 2012 WL 1977972, at *5

C. Legal Standard Governing Unopposed Motions

In this District, when a non-movant fails to oppose a legal argument asserted by a movant in support of a motion, the movant's burden with regard to that argument has been lightened such that, in order to succeed on that argument, the movant need only show that the argument possesses facial merit, which has appropriately been characterized as a "modest" burden. See N.D.N.Y.L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein...."); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n. 1 (N D.N.Y.Oct.30, 2009) (Suddaby, 3.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at *2 & n. 3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).

D. Legal Standards Governing Plaintiff's Claims

Because the Court has, in its Decision and Order of March 7, 2011, addressed the relevant points of law contained in the legal standards governing Plaintiffs claims in this action, the Court will not again recite, in their entirety, those legal standards in this Decision and Order, 9 which is intended primarily for review by the parties (See generally Dkt. No. 5 [Decision and Order].)

E. Legal Standards Governing Defendants' Defenses

1. Defense of Lack of Separate Identity

"Under New York law, departments that are merely administrative aims of a municipality do not have a legal identity separate and apart from the municipality, and therefore, cannot sue or be sued." Davis v. Lynbrook Police Dept., 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002). "Pursuant to Fed.R.Civ.P. 17, New York governs the capacity of a police department to sue or be sued. In New York, police departments like the defendant, which are merely administrative aims of a municipal corporation, do not have a legal identity separate and apart from the town" Loria v. Irondequoit 775 F.Supp. 599, 606 (W.D.N.Y.1990). While a municipality can sue or be sued, the police department, which does not exist separate from that municipality, can not. Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y.1999).

2. Defense of Limited Municipal Liability

*6 It is well established that "[a] municipality may not be held liable in a Section 1983 action for the conduct of a lower-echelon employee solely on the basis of respondeat superior."4 "Rather, to establish municipal liability under § 1983 for unconstitutional acts by a municipality's employees, a plaintiff must show that the violation of [his or] her constitutional rights resulted from a municipal custom or policy."5 "Thus, to hold a [municipality] liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to ... prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right."6

With regard to the first element (the existence of a policy or custom), a "[p]laintiff may establish the `policy, custom or practice' requirement by demonstrating: (1) a formal policy officially endorsed by the municipality ...; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question ...; (3) a practice so consistent and widespread that it constitutes a `custom or usage' sufficient to impute constructive knowledge to the practice of policymaking officials ...; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to `deliberate indifference' to the rights of those who come in contact with the municipal employees...."7 With regard to the second element (causation), a plaintiff must show "a direct causal link" or "an affirmative link" between the municipal policy or custom and the alleged constitutional deprivation (i.e., that the policy or custom was the "moving force" behind the deprivation).8

3. Defense of Qualified Immunity

"Once qualified immunity is pleaded, plaintiffs complaint will be dismissed unless defendant's alleged conduct, when committed, violated `clearly established statutory or constitutional rights of which a reasonable person would have known.'" William v. Smith, 781 F.2d 319, 322 (2d Cir.1986) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 [1982]). As a result, a qualified immunity inquiry in a civil rights case generally involves two issues. (1) "whether the facts, viewed in the light most favorable to the plaintiff establish a constitutional violation"; and (2) "whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation confronted." Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir. 2004) [citations omitted], accord, Higazy v. Templeton, 505 Fad 161, 169, n. 8 (2d Cir.2007) [citations omitted].

In determining the second issue (i.e., whether it would be clear to a reasonable official that his conduct was unlawful in the situation confronted), courts in this circuit consider three factors:

*7 Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir 1991) [citations omitted], cert. denied, 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992).9 "As the third party of the test provides, even where the law is `clearly established' and the scope of an official's permissible conduct is `clearly defined,' the qualified immunity defense also protects an official if it was `objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir.2007) [citations omitted].10 This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).11 As the Supreme Court has explained,

[T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law.... Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue, but if officers of reasonable competence could disagree on this issue, immunity should be recognized

Malley, 475 U.S. at 341.12

III. ANALYSIS

A. Whether Plaintiff's Complaint Should Be Dismissed for Failure to Serve Process in Timely Manner

After carefully considering the matter, the Court must answer this question in the negative By Defendants' own calculations, Plaintiffs Complaint was served on April 18, 2011—a mere 42 days after the Court granted Plaintiffs motion to proceed in forma pauperis, approved the filing of her Complaint, and directed the Clerk of the Court to issue summonses and forward them with the Complaint to the United States Marshal's Service, for service on Defendants (Dkt. No. 5 [Decision and Order filed March 7, 2011].) Indeed, Defendants acknowledge that Plaintiff completed the Civil Summonses and USM285 form, and returned them to the Clerk's Office (so that the Clerk's Office could forward them to the U.S. Marshal's Service for service of Plaintiff's Complaint) less than eight days after receiving them from the Clerk's Office. (Dkt. No. 13, Attach 1, at ¶¶ 6-7, Dkt. No. 13, Attach. 2, at 9 [attaching page "8" of Defs.' Memo. of Law]; see also Dkt. Nos. 6, 8.) After that point in time, service was largely if not entirely outside of Plaintiff's control.

Under the circumstances, the Court finds that good cause exists to extend the deadline for service by 42 days The Court notes that a contrary conclusion (e.g., a conclusion that Plaintiff had to serve her Complaint by December 13, 2010 pursuant to Local Rule 4.1, or even February 11, 2011 pursuant to Fed.R.Civ.P. 4) would render meaningless the Court's directive to the Clerk of the Court, on March 5, 2011, to take sufficient action to enable the United States Marshal's Service to effect service for Plaintiff.

B. Whether Plaintiff's Complaint Should Be Dismissed for Failure to State a Claim Upon Which Relief Can Be Granted1. Whether Plaintiffs Complaint Should Be Dismissed for Failing to Sufficiently Identify What Constitutional Rights She Is Attempting to Vindicate

*8 After carefully considering the matter, the Court must answer this question also in the negative. In construing the pleadings of a pro se civil rights litigant in this Circuit, a district court's imagination should be limited only by the plaintiffs factual allegations, not by the legal claims set out in his or her pleadings See Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir.2005) ("We leave it for the district court to determine what other claims, if any, Phillips has raised. In so doing, the court's imagination should be limited only by Phillips' factual allegations, not by the legal claims set out in his pleadings.").

Here, based on Plaintiffs (albeit scant and confused) factual allegations, the Court can imagine that she is attempting to assert the following three claims. (1) a claim of an unreasonable search under the Fourth Amendment, (2) a claim of an unlawful seizure of, and failure to return, her personal property under the Fourth, Fifth and/or Fourteenth Amendments, and (3) a claim of excessive force under the Fourth Amendment.

2. Whether Plaintiff's Claims Against the Individual Defendants Should Be Dismissed for Failing to Allege Facts Plausibly Suggesting Their Personal Involvement in the Constitutional Violations Alleged

After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law (Dkt. No. 13, Attach 2, at 13 [attaching page "12" of Defs.' Memo. of Law].) The Court would add only the following three brief points.

First, at the very least, Defendants have met the lightened burden that was created by Plaintiffs failure to respond to this argument for dismissal. See, Part III.C. of this Decision and Order.13 Second, in any event, the Court would reach the same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument Third, and finally, even when construed with the utmost of special liberality, the Complaint does not identify the precise location of the incident, which officers were responsible for violating her rights, how she suffered the head injury she alleges, what property was taken from her, and how Defendants frustrated her efforts to recover that property. See Vogeler v. Colbath, 04-CV-6071, 2005 U. S. Dist. LEXIS 44658, at *29, 2005 WL 2482549 (S.D.N.Y. Oct. 6, 2005) ("Plaintiffs must also allege ... the personal involvement of the Defendant in the actions underlying their claim.").14

For all of these alternative reasons, Plaintiffs claims against the individual Defendants are dismissed.

3. Whether the Syracuse Police Department Should Be Dismissed as a Defendant

After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law. (Dkt. No. 13, Attach 2, at 13.) The Court would add only the following three brief points.

*9 First, at the very least, Defendants have met the lightened burden that was created by Plaintiffs failure to respond to this argument for dismissal Second, in any event, the Court would reach the same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument. Third, and finally, "as Plaintiff has been told several times, under New York State law, departments, like the Onondaga County Sheriffs Department, that are merely administrative aims of a municipality, do not have a legal identity separate from the municipality and may not sue or be sued." Jenkins v. Onondaga Cnty. Sheriffs Dep't, 12-CV-0855, Report-Recommendation, at 5 (N.D.N.Y. filed June 28, 2012) (Baxter, J.) (citing Hayes v. Cnty. of Sullivan, 07-CV-0667, 2012 WL 1129373, at *24 [S.D.N.Y. March 30, 2012]). Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant in this case. The real party in interest is the City of Syracuse itself.

For all of these alternative reasons, the Syracuse Police Department dismissed as a Defendant.

4. Whether, Even if the City of Syracuse Were Substituted for the Police Department, Plaintiff's Claims Against the City Should Be Dismissed for Failing to Allege Facts Plausibly Suggesting Municipal Liability

After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law (Dkt. No. 13, Attach 2, at 14-15 [attaching pages "13" and "14" of Defs.' Memo. of Law].) The Court would add only the following three brief points.

First, at the very least, Defendants have met the lightened burden that was created by Plaintiffs failure to respond to this argument for dismissal Second, in any event, the Court would reach same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument Third, even when it is construed with the utmost of special liberality, Plaintiff's Complaint has not alleged facts plausibly suggesting a widespread policy or custom promulgated by the municipal policy maker necessary to hold the City liable for her injuries. As indicated above in Part II.E.2. of this Decision and Order, Plaintiff must allege facts plausibly suggesting that the municipality "has adopted a `custom' or `policy' which is the `moving force' behind [the violation]." Zappala Albicelli, 980 F.Supp. 635, 639 (N.D.N.Y.1997) (Scullin, J.) (citing, inter alia, Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 689 [1978]). However, Plaintiff has not alleged any official policy or custom adopted by the City of Syracuse or its Police Department,15 let alone one responsible for the alleged injuries she received Because Monell prohibits the finding of liability against a City when there is no causal connection between a municipal policy and a resulting injury, Syracuse City Police Department cannot be responsible for Plaintiff's alleged injuries. Monell, 436 U. S. at 692. As a result, the City of Syracuse cannot be maintained as a Defendant in this action, and Plaintiffs Section 1983 claims against it are dismissed

*10 For all of these reasons, Plaintiffs claims against the City of Syracuse Police Department and/or the City of Syracuse are dismissed on this alternative ground.

5. Whether, in the Alternative, Plaintiff's Deprivation-of-Property Claim Should Be Dismissed to the Extent It Is Grounded on the Fifth Amendment

After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law (Dkt. No. 13, Attach 2, at 16-17 [attaching pages "15" and "16" of Defs.' Memo. of Law].) The Court would add only the following four brief points.

First, at the very least, Defendants have met the lightened burden that was created by Plaintiffs failure to respond to this argument for dismissal Second, in any event, the Court would reach the same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument Third, a takings claim is not ripe where a state remedy is potentially available. Vandor Inc. v. Militello, 301 F.3d 37, 39 (2d. Cir.2002). As the Supreme Court has explained,

Hudson v. Palmer; 468 U.S. 517, 533, 104 S.Ct. 3194, L.Ed.2d 393 (1984). Police are not required to provide the owner with notice for state-law remedies, which are "established by published, generally available state statutes and case law." City of W. Covina v. Perkins, 525 U.S. 234, 240-241, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999). "Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures that are available to him The City need not take other steps to inform him of his options." City of W. Covina, 525 U. S. at 241. Here, Plaintiff has not alleged facts plausibly suggesting that she attempted to recover her property in the proper manner (or even what property was taken). Fourth, and finally, Plaintiff does not allege facts suggesting that her property was taken for public use in an unconstitutional manner that would require her to be paid just compensation Instead, Plaintiff alleges that, after she attempted to escape from their investigation and was restrained by officers, she was searched and had property taken from her.

For all of these alternative reasons, Plaintiff's deprivation-of-property claim is dismissed to the extent that it is grounded on the Fifth Amendment.

6. Whether, in the Alternative, Plaintiff's Excessive Force Claim Should Be Dismissed for Failing to Allege Facts Plausibly Suggesting Either that Force Was Used or that Any Such Force Was Excessive

*11 After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law (Dkt. No. 13, Attach. 2, at 17-18 [attaching pages "16" and "17" of Defs.' Memo. of Law].) The Court would add only the following three brief points.

First, at the very least, Defendants have met the lightened burden that was created by Plaintiff's failure to respond to this argument for dismissal Second, in any event, the Court would reach same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument Third, as stated in the Court's Decision and Order of March 7, 2011, in evaluating a Fourth Amendment excessive-force claim, "courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." (Dkt. No. 5, at 13.)16 Here, Plaintiff alleges the following facts, which could be construed as plausibly suggesting that, at the time the incident occurred, she had given Defendants probable cause to use the force at issue against her: (1) Defendants were dispatched to that location regarding a problem; (2) Defendants specifically chose to question Plaintiff about the incident (3) Plaintiff was attempting to get away from Defendant when they were attempting to question her, (4) she acted in such a way as to cause Defendants to become "worked up", (5) it became necessary for a third unnamed officer to step in and assist Defendants Sands and Liadka in controlling Plaintiff (Dkt. No. 1, at ¶ 4 & Attachment) Simply stated, it is plausible, based on Plaintiff's factual allegations, that the amount of force used by the officers to pull her hands behind her back and detain her was necessary to keep her from getting away and "going about [her] business." (Id. at ¶ 4.) It is important to note that Plaintiff does not allege facts plausibly suggesting any physical Injury other than vague "head & back pains." (Id. at ¶ 5.)17

For all of these reasons, Plaintiffs excessive force claim is dismissed on this alternative ground

7. Whether, in the Alternative, Plaintiff's Claims Against the Individual Defendants Should Be Dismissed Because, Based on the Factual Allegations of the Complaint, Defendants Are Protected from Liability as a Matter of Law by the Doctrine of Qualified Immunity

After carefully considering the matter, the Court answers this question in the affirmative for the reasons stated by Defendants in their memorandum of law (Dkt. No. 13, Attach. 2, at 19-20 [attaching pages "18" and "19" of Defs.' Memo. of Law].) The Court would add only the following three brief points.

First, at the very least, Defendants have met the lightened burden that was created by Plaintiff's failure to respond to this argument for dismissal Second, in any event, the Court would the reach same conclusion even if it were to subject Defendants' argument to the more rigorous scrutiny appropriate for a contested argument. Third, as indicated above in Part I.E.3. of this Decision and Order, "[u]nder federal law, a police officer is entitled to qualified immunity where (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act" Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007) (internal quotations and other citations omitted). Here, based on Plaintiff's own factual allegations, it is plausible that police officers of reasonable competence could disagree as to whether Defendants' actions were unlawful (e g., given their need to question her, and her attempt to flee the scene).

*12 For all of these reasons, Plaintiffs claims against the individual Defendants are dismissed on this alternative ground.

C. Whether the Court Should Give Plaintiff an Opportunity to File an Amended Complaint Before Dismissing This Action

Generally, when a district court dismisses a pro se action, the plaintiff will be allowed to amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir.1999). However, an opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely formal, such that any amendment would be futile. As the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted), accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N D.N.Y. Sept. 22, 1997) (Pooler, J.) ("[T]he court need not grant leave to amend where it appears that amendment would prove to be unproductive or futile.") (citation omitted); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (denial not abuse of discretion where amendment would be futile); Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) ("The problem with Cuoco's causes of action is substantive, better pleading will not cure it Repleading would thus be futile. Such a futile request to replead should be denied.") (citation omitted), Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (citation omitted), Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990) ("[W]here there is no merit in the proposed amendments, leave to amend should be denied").

This rule applies even to pro se plaintiffs. See, e.g., Cuoco, 222 F.3d at 103, Brown, 1997 WL 599355, at *1. As explained above in Part II.B. of this Decision and Order, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ. P. 8, 10 and 12, rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.

Here, the Court has some difficulty finding that the referenced defect in Plaintiffs Complaint is merely formal. Nor is the Court confident that granting Plaintiff an opportunity to amend her Complaint will be productive. The Court notes that the errors made by Plaintiff in this action were previously made by her, and not corrected, on many occasions. Plaintiff has been ordered numerous times to file amended complaints at risk of dismissal of her case.18 Of the seven times an amended complaint was required, Plaintiff submitted an amended complaint only three times.19 Two of these were one page documents which did not state a claim upon which relief could be granted and were rejected by the Court, and the other did not correct the deficiencies of the original complaint.20 Plaintiff did not comply with the Court's order to amend her complaint at all on four occasions.21 In one case, Plaintiff was given an additional thirty day period to file her amended complaint after she failed to do so within the first 30 day period granted to her Jenkins v. Emergency Dep't Upstate Univ. Hosp., 06-CV-0060 (N D.N.Y filed Jan. 17, 2006). Similarly, in a separate case, Plaintiff did not follow up on her original claim because she failed to appear for three hearings the Court rescheduled despite warnings of her need to comply with the Court Orders. Jenkins v. Onondaga Sheriffs' Dep't, 05-CV-1457 (N.D.N.Y. filed Nov. 21, 2005). All seven of these cases resulted in dismissal, most for failure to prosecute, failure to comply with Court Orders, or failure to state a claim. Five of Plaintiffs cases were not given leave to amend because granting such leniency would have been futile.22

*13 However, the Court is mindful of the special solicitude that should be afforded to pro se civil rights litigants. For these reasons, before the Court dismisses Plaintiffs action, the Court will afford her an opportunity to file an Amended Complaint correcting the above-described pleading defects within thirty (30) days from the date of the filing of this Decision and Order.

If Plaintiff submits an Amended Complaint, she is encouraged to describe the acts of misconduct alleged therein and identify each individual who participated in the misconduct Moreover, Plaintiff is advised that her Amended Complaint must be a complete pleading that will replace and supersede her original Complaint in its entirety. Finally, Plaintiff is cautioned that, if she fails to file, in a timely fashion, an Amended Complaint that successfully states a claim upon which relief can be granted, her action will be dismissed with prejudice without further Order of the Court.

D. Whether This Case Should Be Forwarded to the Chief Judge with a Recommendation that an Anti-Filing Injunction Order Be Issued Against Plaintiff

A review of Plaintiffs litigation history on Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service reveals that, before filing the current action on October 13, 2010, she filed thirteen pro se civil actions in this District alone-twelve of which have been dismissed and the thirteen of which is being considered for dismissal.23 A review of Plaintiffs litigation history has caused the undersigned to believe that (1) Plaintiff lacks a good-faith expectation in prevailing in her lawsuits, (2) she is vexatious and indeed incorrigible when proceeding pro se, (3) she has caused needless expense to other parties and placed an unnecessary burden on the Court and its personnel, and (4) no lesser sanctions (e g., such as dismissal or chastisement) would be adequate to protect the Court and other parties.

For example, eight of Plaintiffs actions have resulted in a dismissal for failure to state a claim or frivolousness, another has resulted in the pending recommendation of a dismissal on that ground, three others have resulted in a dismissal for lack of subject-matter jurisdiction, and another has resulted in a dismissal for failure to prosecute.24

Moreover, Plaintiff has sued the Onondaga County Sheriff's Department four times.25 As a result, she has been repeatedly instructed on the legal standard for suing a municipality. For example, on October 6, 2006, she was specifically informed of the need to establish a custom or policy which is the moving force behind a resulting injury. Jenkins v. Onondaga Cnty. Sheriff's Dep't., 06-CV-1092, Decision and Order, at 4 (N.D.N.Y. filed Oct. 6, 2006) (McAvoy, J.). However, despite receiving that specific information, she has repeatedly continued to file improper claims against the Onondaga County Sheriff's Department.26

Finally, Plaintiff has repeatedly had to be ordered to comply with the Local Rules, and reminded that all factual allegations should be contained in the complaint itself, that paragraphs ought to be numbered, and that the individuals she alleges violated her rights must be identified See, e.g., Jenkins v. Dep't Corr. Servs., 06-CV-0621, Decision and Order (N.D.N.Y. filed July 5, 2006) (Kahn, J.); Jenkins v. Onondaga Sheriff's Dep't, 06-CV-1092, Order (N.D.N.Y. filed Oct 6, 2006) (McAvoy, J.).

*14 Under such circumstances, a federal district court may impose reasonable filing restrictions on a pro se litigant in that particular court, pursuant to 28 U. S. C. § 1651(a) and its inherent authority to control and manage its own docket so as to prevent abuse in its proceedings. For example, a federal district court may, after providing an appropriate opportunity to be heard, prohibit a vexatious litigant from filing, in that particular court, any action pro se (that is, without counsel), without prior leave of that court. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.2005) ("If a litigant has a history of filing vexatious, harassing or duplicative lawsuits, courts may impose sanctions, including restrictions on future access to the judicial system.") [internal quotations and citations omitted]; In re Sassower, 20 F.3d 42, 44 (2d Cir.1994) (where a pro se plaintiff has demonstrated a "clear pattern of abusing the litigation process by filing vexatious and frivolous complaints," a "leave to file" requirement may be instituted by the court as an appropriate sanction), Moates v. Barkley, 147 F.3d 207, 208 (2d Cir.1998) ("[T]he district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard."); Azubuko v. Unknown Boston Police Officers, 08-CV-0330, 2008 WI, 1767067, at *1 (N.D.N.Y. Apr. 16, 2008) (McCurn, J.).

For all of these reasons, this case is forwarded to Chief United States District Judge Gary L. Sharpe with a recommendation that an Anti-Filing Injunction Order be issued against Plaintiff.

ACCORDINGLY, it is

ORDERED that Defendants' motion to dismiss (Dkt. No. 13) is GRANTED in part and DENIED in part; and it is further

ORDERED that Plaintiffs Complaint (Dkt No. 1) is conditionally DISMISSED; and it is further

ORDERED that Plaintiff is permitted to file an Amended Complaint within THIRTY (30) DAYS of the filing date of this Order; and it is further

ORDERED that, if Plaintiff fails to timely file an Amended Complaint, the Clerk shall enter judgment dismissing this action without further Order of this Court; and it is further

ORDERED that, upon filing of the Amended Complaint, this file in this matter be returned to the Court for further review, and it is further

ORDERED that the Clerk of the Court is directed to forward this case to Chief United States District Judge Gary L. Sharpe with the recommendation of the undersigned that an AntiFiling Injunction Order be issued against Plaintiff.

The Court hereby certifies, for purposes of 28 U.S.C. 1915(a)(3), that any appeal taken from the Court's final judgment in this action would not be taken in good faith.

All Citations

Not Reported in F.Supp.2d, 2012 WL 4052286

Attorneys and Law Firms

Mark W. Blond, Jr., Romulus, NY, pro se.

Alaina K. Laferriere, Carter, Conboy Law Firm, Albany, NY, Luke C. Davignon, Carter, Conboy Law Firm, Albany, NY, for Defendants.

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

*1 Plaintiff commenced the instant action under 42 U.S.C. § 1983 against officials and employees of the City of Schenectady alleging his constitutional rights were violated while he was arrested and interrogated by the police. Defendants now move to dismiss pursuant to Fed.R.Civ.P 12(c). Plaintiff cross-moves to amend his Complaint.

I. FACTS

For purposes of the instant motion, the following factual allegations are deemed to be true and all reasonable inferences are drawn in Plaintiff's favor.

On May 4, 2008, Plaintiff walked out the back door of his house. Defendant City of Schenectady Police Officer McDonald approached Plaintiff in an aggressive manner and "nearly broke the plaintiffs arm" before placing him in handcuffs. Plaintiff did not resist Officer McDonald. Without being informed of his Miranda warnings or advised of the charges against him, Plaintiff was placed in the back of McDonald's car so McDonald could question third parties While in the car, Plaintiff asked Officer St. Onge to "disable his car that was parked in the back yard of the apartment" Officer St. Onge slammed the door shut in Plaintiffs face. "[The plaintiff made a second attempt to have his property protected with the same result of officer St. Onge slamming the police car door shut on the plaintiff." "This made the already alcohol induced plaintiff angry, in which he began hitting his head against the police car window (rear passenger side)." Officer St. Onge observed Plaintiff hitting his head against the window, but did nothing. Plaintiff hit his head against the police car window 4-5 times, after which the window shattered.

Plaintiff was not bleeding and did not sustain any cuts from having broken the car window McDonald "ran from the backyard to the front and tried to rip the plaintiff out of the window that was broken." McDonald "then decided to open the police car door, where he and officer St. Onge tried to push [Plaintiff] into a[f]ire [h]ydrant." "[P]laintiff was instead pushed by both offices [sic] to the ground where the glass was, [where] both officer's [sic] began kneeing the plaintiff in his lower back and the back side of his neck." Plaintiffs face was "pressed into the glass on the ground." McDonald sprayed a can of pepper spray in Plaintiff's face.

Plaintiff was left" on the ground with his face burning in pain" for approximately 30 minutes until another vehicle arrived to transport him to the police station During this time, Plaintiff asked if he could use the hose to rinse the pepper spray from his eyes and face. The officers did not respond to Plaintiff's request.

Plaintiff was transported to the police station where pictures were taken of his face. After the pictures were taken, Plaintiff was permitted to rinse his face and eyes. Plaintiff believed he had glass in his eyes "from the oficer's [sic] pressing his face into the glass on the ground." An ambulance was called and Plaintiff was taken to the hospital "The nurse flushed out the plaintiff's eyes and found no glass" "The plaintiff was released from the hospital feeling dizzy back into the custody of the Schenectady police, where Defendant Detective Sherri Barnes question[ed] the plaintiff without his attorney and after his head injury."

II. STANDARD OF REVIEW

a. Motion for Judgment on the Pleadings

*2 Defendants move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). A Rule 12(c) motion is "designed to provide a means of disposing of cases when the material facts are not in dispute between the parties." 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed.2010). A motion under Rule 12(c) is only useful if "all material allegations of fact are admitted or not controverted in the pleadings and only questions of law remain to be decided by the district court." Id.

The standard of review for a motion for judgment on the pleadings under Rule 12(c) is the same as for a Rule 12(b)(6) motion to dismiss. Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir 2006); Sharpe v. Taylor; 2009 WL 1743987 at *6 (N.D.N.Y. June 18, 2009). The Court must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader. Rosner v. Bank of China, 349 F. App'x 637, 638 (2d Cir.2009) To survive a motion to dismiss, the Complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face'" Ashcroft v. Iqbal, ___ ___ U. S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

The Court recognizes Plaintiff is proceeding pro se and, accordingly, his pleadings are held to a "less stringent standard than formal pleadings drafted by lawyers." Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Plaintiffs pleadings "must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); Brownell v. Krom, 446 F.3d 305, 310 (2d Cir 2006); Forsyth v. Fed'n Employment & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005). However, pro se litigants are not exempt "from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983).

b. Motion to Amend the Complaint

Plaintiff cross-moves to file an amended complaint. A party seeking to amend a pleading more than 21 days after the filing of a responsive pleading may do so with the consent of all parties or with leave from the Court. Fed.R.Civ.P. 15(a)(2). Plaintiff was previously advised that:

*3 Dkt. No. 9. Although Plaintiff has moved for leave to amend, he has not attached an unsigned copy of the proposed amended pleading to his motion papers and his motion does not "set forth specifically the proposed amendments and identify the amendments in the proposed pleading" Local Rule 71(a)(4) Because Plaintiff has not complied with the requirements of Local Rule 7.1, his motion is DENIED with leave to renew.

III. DISCUSSION

Defendants move to dismiss the Complaint in its entirety. For Plaintiff to succeed on a claim under 42 U. S.C. § 1983 claim, he must prove that the defendant, while acting under color of state law, deprived him of his 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) see 42 U. S. C. § 1983. A civil rights complaint "must contain specific allegations of fact which indicate a deprivation of constitutional [or federal statutory] rights, allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987). A defendant's personal involvement in a § 1983 claim is a prerequisite to an award of damages. Wright v. Smith, 21 F.3d 496, 501 (2d Cir 1994) A plaintiff must allege specific facts to demonstrate that a particular defendant was personally or directly involved in the violation Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) The requirement of personal involvement may be satisfied by showing that the defendant: (1) personally participated in the violation; (2) was grossly negligent in supervising subordinates who committed the wrongful acts, or (3) exhibited deliberate indifference by failing to act on information indicating the unconstitutional acts were occurring Provost, 262 F. 3d at 154, see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).

a. The City of Schenectady

The City of Schenectady moves to dismiss the claims against it on the ground that Plaintiff has failed to demonstrate a violation of any rights caused by municipal policy or custom. A municipality may not be held liable under Section 1983 solely on the doctrine of respondeat Monell v. Dep't of Soc. Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) To be held liable for a constitutional violation, a municipality must have adopted a policy or custom that caused a deprivation of constitutional rights, or it must have directly caused an employee to violate another's constitutional rights. Monell, 436 U.S. at 692, see Ximines v. George Winqate High Sch., 516 F.3d 156, 160 (2d Cir 2008). Here, Plaintiff fails to allege sufficient facts to support a reasonable inference that a municipal policy or custom resulted in a deprivation of his rights Accordingly, Plaintiffs claims against the City of Schenectady must be DISMISSED.

b. The Mayor and the Chief of Police

*4 The Mayor and the Chief of Police move to dismiss the claims against them on the ground that Plaintiff failed to plead any personal involvement by them As previously noted, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006). Here, Plaintiff does not allege any facts plausibly indicating that either the Mayor or the Chief of Police Chief were personally involved in any alleged constitutional violations arising from his arrest, incarceration, or prosecution. Plaintiff similarly fails to plead sufficient facts to state a claim under the standards for supervisory liability applicable to § 1983 claims. Accordingly, Plaintiffs claims against the Mayor and the Chief of Police must be DISMISSED.

c. False Arrest, Malicious Prosecution, Failure to Provide Miranda Warnings, and Coercive Questioning

Defendants move to dismiss any false arrest and malicious prosecution claims on the ground that Plaintiff does not allege that the criminal charges were disposed of in his favor. Plaintiff does not allege in his Complaint that any criminal actions against him were disposed of in his favor While the Complaint does allege facts suggesting that Plaintiff was arrested, it makes no claim that the arrest was without probable cause. Accordingly, any malicious prosecution and false arrest claims must be DISMISSED.

Defendants move to dismiss any claim concerning the failure to administer Miranda warnings on the ground that it does not give rise to a private cause of action for damages. A Section 1983 claim cannot stand solely on the basis of an alleged failure to administer Miranda warnings. Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir.1998) ("[P]laintiffs cannot base a § 1983 claim solely on a law enforcement officer's failure to administer Miranda warnings...."); Neighbor v. Covert, 68 F.3d 1508, 1510-1511 (2d Cir 1995) ("[E]ven if we were to assume that (the plaintiff's] Miranda rights had been violated, that violation, standing alone, would not form a basis for liability under § 1983."). There is no allegation that coercion was applied to obtain a waiver of Plaintiffs rights against self-incrimination and/or to obtain a inculpatory statements or that any such statements were then used against Plaintiff in criminal proceedings Accordingly, Plaintiff fails to state a claim upon which relief can be granted Id. Further, because it appears that Plaintiff is currently incarcerated for crimes for which he was arrested in May 2008, any such claims may run afoul of the rule set forth in Heck v. Humphrey, 512 U.S. 477, 486-89, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (a Section 1983 suit for damages that "would necessarily imply the invalidity of [the plaintiffs] conviction or sentence" is not cognizable, unless the plaintiff can show that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.").

d. Inadequate Medical Care

*5 To the extent Plaintiff asserts a Fourteenth or Eighth Amendment claim of inadequate medical care, any such claim must be dismissed because he failed to allege facts plausibly suggesting an unconstitutional deprivation of medical treatment. To establish such a claim, Plaintiff must show that defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L. Ed. 2d 251 (1976); Harrison v. Barkley, 219 F.3d 132, 136 (2d Cm 2000); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir 1998). The deliberate indifference standard contains both an objective element and a subjective element The former requires that the alleged deprivation of care be sufficiently serious in objective terms, the plaintiffs condition must present a "condition of urgency, one that may produce death, degeneration, or extreme pain" Hathaway, 37 F.3d at 66. The subjective element requires a showing that the defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious hams. Id.

Here, Plaintiffs allegations against Defendants are insufficient to establish a constitutional deprivation. Plaintiff fails to allege a serious medical condition for which he sought and was denied treatment Although Plaintiff was sprayed with pepper spray and he was not permitting to rinse his eyes for they to sixty minutes, this is insufficient to state a claim See Strassner v. O'Flynn, 2006 WL 839411, at *8 (W.D.N.Y.2006) (and cases cited therein) (exposure to temporary discomfort of pepper spray is not a serious medical need) Plaintiff similarly fails to allege what harm, if any, resulted from the delay in treatment Moreover, there are insufficient allegations of deliberate indifference to any medical need Once he was brought to the police station and pictures were taken, Plaintiff was permitted to rinse his face To the extent Plaintiff complained of glass in his eye (which could constitute a serious medical need), an ambulance was called and Plaintiff was taken to the hospital where a nurse rinsed his eye and did not find any glass. Accordingly, Plaintiffs claim of inadequate medical care must be DISMISSED.

e. Excessive Force and Failure to Intervene

Defendants next move to dismiss the excess force and failure to intervene claims. When evaluating an excessive use of force claim under the Fourth Amendment, "courts should examine whether the use of force is objectively unreasonable `in light of the facts and circumstances confronting them, without regard to [the officers'] underlying intent or motivation.'" Jones v. Parmley, 465 F.3d 46, 61 (2d Cir 2006) (quoting Graham v. Connor; 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed. 2d 443 (1989)). Courts measure the reasonableness of the use of force by considering "the facts and circumstances of each particular case, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest." Pannley, 465 F. 3d at 61 (quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir.1999)).

*6 A police officer may use some degree of force when making an arrest, but the amount of force "must be reasonably related to the nature of [the] resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer" Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir.2000). The court must examine the totality of the circumstances, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight" Graham, 490 U.S. at 396. "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Id. Dismissing an excessive force claim is appropriate where "no reasonable fact finder could conclude that the officers' conduct was objectively unreasonable." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004). For a plaintiff to prevail on a motion to dismiss, he must show that "no rational jury could [find] that the force used was so excessive that no reasonable officer would have made the same choice." Lennon v. Miller, 66 F.3d 416, 426 (2d Cir.1995).

Defendants contend that the use of pepper spray by an arresting officer does not by itself rise to the level of excessive use of force. In some cases, an unconstitutional act or injury may be so de minimis that the act cannot rise to the level of a constitutional violation as a matter of law. Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) ("[A] de minimis use of force will rarely suffice to state a constitutional claim."). The Second Circuit has noted, however, that "infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects ... and, as such, its use constitutes a significant degree of force" Tracy v. Freshwater; ___ F.3d ___, 2010 WL 4008747 at *7 (2d Cir. Oct. 14, 2010). "Accordingly, a number of our sister circuits have made clear that it should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer." Id. In Tracy, the Second Circuit held that the use of pepper spray on an individual who was handcuffed and was not offering physical resistance could be unreasonable under the circumstances. Id. Although Plaintiff admits to being drunk and angry and to having broken out the window of the police car, he also claims to have been handcuffed and placed on the ground with two police officers on top of him at the time he was pepper sprayed. These allegations are sufficient to plausible state a claim for the use of excessive force against the officer using the pepper spray and for a failure to intervene against the officer who was present but failed to intercede. O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988).

IV. CONCLUSION

*7 For the foregoing reasons, Defendants' motion to dismiss is GRANTED as follows.

In all other regards, the motion to dismiss is DENIED Plaintiffs motion to for leave to amend his original complaint is DENIED WITH LEAVE TO RENEW UPON PROPER PAPERS

IT IS SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2010 WL 4316810