Opinion
5:19-cv-1458 (DNH/TWD)
12-20-2019
TONY V. STARLING, SR., Plaintiff, v. SYRACUSE POLICE DEPARTMENT, et al., Defendants.
APPEARANCES: TONY V. STARLING, SR. Plaintiff, pro se Onondaga County Justice Center 555 South State Street Syracuse, NY 13202
APPEARANCES: TONY V. STARLING, SR.
Plaintiff, pro se
Onondaga County Justice Center
555 South State Street
Syracuse, NY 13202 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for review a complaint submitted by pro se Plaintiff Tony V. Starling, Sr., asserting claims pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis ("IFP Application"). (Dkt. Nos. 1, 4.) Plaintiff, who is presently confined at the Onondaga County Justice Center, has not paid the required filing fee.
By Order filed November 26, 2019, Plaintiff's first IFP Application (Dkt. No. 2) was denied as incomplete and this action was administratively closed. (Dkt. No. 3.) The matter was reopened and restored to the docket by Order filed December 5, 2019. (Dkt. No. 6.)
I. IFP APPLICATION
Plaintiff has submitted a completed and signed IFP Application (Dkt. No. 4), which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization form required in this District. (Dkt. No. 5.) Accordingly, Plaintiff's IFP Application is granted.
"28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)). Plaintiff should also note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
II. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
Section 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).
An action is frivolous if the complaint "lacks an arguable basis either in law or in fact." Natzke v. Williams, 490 U.S. 319, 325 (1989).
Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief can be granted; or . . . seeks monetary relief against a person who is immune from such relief." 28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both Sections 1915 and 1915A are available to evaluate prisoner pro se complaints).
As used in this section, the term "prisoner" means "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915A(c).
A court may not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief 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) (citing Twombly, 550 U.S. at 556). Although the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[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.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id . (internal quotation marks and alterations omitted).
The Court must construe pro se complaints liberally, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations 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 quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Summary of the Complaint
Plaintiff's nineteen-page pleading is comprised of a pro se civil rights form complaint, along with additional pages of documents and letters in support thereof. (See generally Dkt. No. 1.) The following fact are set forth as alleged by Plaintiff.
In addition to the form complaint, dated November 16, 2019, Plaintiff has filed a two-page handwritten narrative detailing the event giving rise to this action with a New York State caption against the Syracuse Police Department as dated October 7, 2019, and November 21, 2019, (id. at 1-2); a four-page handwritten similar narrative with a New York State caption against Onondaga County Justice Center, Onondaga County Sheriff's Office, Onondaga County (County Executive), Sheriff, Undersheriff, Chief of Custody, Syracuse Police Department, Syracuse Police Officers, Syracuse Police Chief, and City of Syracuse (Office of Mayor), titled "Verified Affidavit in Support of Notice of Claim, Tort, and Complaint," dated October 24, 2019, (id. at 6-9); a six-page handwritten letter describing the events at issue addressed to The Post Standard, The Legal Aid Society of New York, and Cozen O'Connor Law Firm, and copied to the Onondaga County Supreme Court, Onondaga County Executive, City of Syracuse Mayor, City of Syracuse Chief of Police, and State of New York Attorney General, dated October 19, 2019, (id at. 10-15); correspondence from the Syracuse Citizen Review Board dated April 12, 2019, (id. at 16); correspondence from the Syracuse Police Department dated April 23, 2019, (id. at 17); correspondence from the Syracuse Police Department dated April 23, 2019, and June 11, 2019, (id. at 17-18); and a handwritten letter addressed to Syracuse Police of Chief Kenton T. Buckner dated October 15, 2019, (id. at 19).
On April 7, 2019, Plaintiff was subjected to excessive force during an arrest and denied subsequent medical treatment by Syracuse Police Officers P. Moore, C. Mahon, and K. Kemple. (Id. at 3-5.) Specifically, he claims he was "beaten," "pepper sprayed," and "snatched," from the passenger side of his cousin's vehicle "without being asked for I.D." while the car was parked on the side of the street by these Syracuse Police Officers. (Id. at 4.) The excessive force was "applied . . . continuously for a few minutes composed of dragging, pulling, slamming, punching, and bludgeoning [Plaintiff]. Even after applying restraints and having [him] fully subdued, police continued with exercising blunt force and gratuitous violent behavior." (Id. at 12.) Plaintiff "clamored and writhed in agony and pain, importing police to cease their beating on him and to seek exigent emergency services. He was taken to the nearby fire department to flush his eyes for about three minutes and then transported directly to the Justice Center. No hospitalization or emergency medical services were administered." (Id. at 13.)
Plaintiff states that "K. Kemple" may be "K. Kemble," "K. Kimple," or "K. Kimble." (Dkt. No. 1 at 4, 5.) The Court will use "K. Kemple" herein.
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless noted, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Five days later, after he kept complaining about his pain, Plaintiff was transported from the Onondaga County Justice Center to "nearby hospital services where it was deemed [he] had incurred a fractured disc in the lower lumbar (back), nerve damage in his back, neck, and hands, ensuing numbness in the hands, neck, and legs, and deplorable injury to his right eye." (Id. at 4, 13.) In addition to his injuries, Plaintiff must now wear glasses. (Id. at 4.)
Plaintiff seeks money damages. For a complete statement, reference is made to the complaint.
C. Analysis
Plaintiff brings this action pursuant to Section 1983, which establishes a cause of action "for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." 42 U.S.C. §1983. "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
It is well settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). "[A] Section 1983 plaintiff must 'allege a tangible connection between the acts of the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986)) (other citation omitted). Accordingly, supervisors cannot be held liable for damages under Section 1983 solely by virtue of their roles as supervisors, nor can their liability be predicated upon respondeat superior. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); see also Iqbal, 556 U.S. at 676 ("[V]icarious liability is inapplicable to . . . [Section] 1983 suits.").
Prior to Iqbal, the Second Circuit held that supervisory personnel may be considered "personally involved" only if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
1. P. Moore, C. Mahon, and K. Kemple
The Court construes Plaintiff's complaint as alleging Fourth Amendment excessive force and Fourteenth Amendment deliberate indifference claims against Syracuse Police Officers P. Moore, C. Mahon, and K. Kemple. Therefore, the Clerk is directed to amend the docket to add P. Moore, C. Mahon, and K. Kemple as Defendants.
a. Excessive Force
"The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). The standard governing excessive force is "whether the officers' actions [were] 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). "[T]he Second Circuit has held that even minor injuries, including scrapes and bruises, can support an excessive-force claim." Matthews v. City of New York, 889 F. Supp. 2d 418, 442 (E.D.N.Y. 2012).
Here, Plaintiff claims that on April 7, 2009, P. Moore, C. Mahon, and K. Kemple beat, pepper sprayed, dragged, pulled, slammed, and punched Plaintiff, some of which occurred while he was restrained, resulting in serious injuries. (Dkt. No. 1 at 3-5, 12, 13.) Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds Plaintiff's Fourth Amendment excessive force claims against P. Moore, C. Mahon, and K. Kemple survives sua sponte review. In so finding, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed dispositive motion.
b. Deliberate Indifference
An arrestee or pretrial detainee's claim of deliberate indifference to medical needs is analyzed under the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, which is the source of the same right for convicted prisoners. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (addressing pretrial detainees' claims of deliberate indifference to conditions of confinement); see also Boston v. Suffolk Cty., No. 14-cv-5791, 2018 WL 344970, at *10 (E.D.N.Y. Jan. 9, 2018) (applying Darnell to claims of deliberate indifference to medical needs by arrestee).
Because Plaintiff has not alleged any deprivation of his constitutional rights while a convicted prisoner, the Court recommends dismissing any Eighth Amendment claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Plaintiff also asserts a Fifth Amendment claim. (See Dkt. No. 1 at 5.) The Fifth Amendment, however, applies to the federal government, not to the states. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (holding Fifth Amendment's Due Process Clause protects citizens against only federal government actors, not state officials); Ambrose v. City of New York, 623 F. Supp. 2d 454, 466-67 (S.D.N.Y. 2009) (holding that any due process claim against the city was "properly brought under the Fourteenth Amendment, not the Fifth Amendment"). Because Plaintiff has not alleged any deprivation of his due process rights by the federal government, the Court also recommends dismissing any Fifth Amendment claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
To state a Fourteenth Amendment claim for medical indifference, a plaintiff must allege (1) the medical need was "sufficiency serious" such that it is "a condition of urgency, one that may produce death, degeneration, or extreme pain," and (2) the defendant "acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed . . . even though the [officer] knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell, 849 F.3d. at 35. Both prongs of this test are defined "objectively" under the Fourteenth Amendment. Id.
As a general matter, non-medical personnel may be liable for deliberate indifference to medical needs where a plaintiff demonstrates that such personnel intentionally denied or delayed access to medical care or intentionally interfered with medical treatment once is was prescribed. See Burroughs v. Mitchell, 325 F. Supp. 3d 249, 274 (N.D.N.Y. 2018); see also Boyd v. Doe #1, No. 9:18-CV-1333 (TJM/ATB), 2019 WL 1771501, at *7 (N.D.N.Y. Apr. 23, 2019).
Here, Plaintiff claims that he "clamored and writhed in agony and pain, importing police to cease their beating on him and to seek exigent emergency services." (Dkt. No. 1 at 13.) Although he was taken to the nearby fire department to "flush his eyes," "[n]o hospitalization or emergency medical services were administered" and, instead, Plaintiff was transported to the Onondaga County Justice Center. (Id. at 13.)
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, supra, the Court finds Plaintiff's Fourteenth Amendment medical indifference claims against P. Moore, C. Mahon, and K. Kemple survives sua sponte review. In so finding, the Court expresses no opinion as to whether Plaintiff's claims can withstand a properly filed dispositive motion.
2. Syracuse Police Department and Onondaga County Sheriff's Office
Plaintiff identifies the Syracuse Police Department and Onondaga County Sheriff's Office as Defendants. 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 dismissing the complaint against the Syracuse Police Department and Onondaga County Sheriff's Office with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
3. Onondaga County and City of Syracuse
While amenable to suit under Section 1983, 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.
As set forth above, 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); see, e.g., Nielsen v. City of Rochester, 58 F. Supp. 3d 268, 277 (W.D.N.Y. 2014) (conclusory allegations which merely recite the elements for stating a Monell claim are insufficient to state a claim for municipal liability) (citing, inter alia, Genovese v. Town of Southhampton, 92 F. Supp. 2d 8, 25 (E.D.N.Y. 2013)).
Even liberally construed, Plaintiff does not articulate an independent basis to hold these Defendants liable in his complaint and, instead, has only listed Onondaga County and the City of Syracuse as Defendants in the caption on page 6 of the complaint. Plaintiff essentially complains of a single incident, during which the officers did not act properly. There is no indication that Plaintiff can assert a policy or custom which would support municipality liability based on these facts. Therefore, the Court recommends dismissing the complaint against Onondaga County and the City of Syracuse without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
4. Onondaga County Justice Center
Section 1983 provides that an action may be maintained against a "person" who has deprived another of rights under the "Constitution and laws." 42 U.S.C. 1983. A correctional facility or jail "are not 'persons' within the meaning of 1983." Philips v. Valhalla County Jail, No. 19-CV-2019 (CS), 2019 WL 1915331, at *1 (S.D.N.Y. Apr. 30, 2019) (collecting cases). Therefore, although Plaintiff listed the Onondaga County Justice Center as a Defendant in the caption on page 6 of the complaint, the Court recommends dismissing the complaint against Onondaga County Justice Center with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
5. Sheriff, Undersheriff, Chief of Custody, Syracuse Police Officers, and Syracuse Police Chief
Although Plaintiff listed the Sheriff, Undersheriff, Chief of Custody, Syracuse Police Officers, and Syracuse Police Chief as Defendants in the caption on page 6 of the complaint, he has not asserted any allegations in the body of his complaint that these Defendants were personally involved in any alleged wrongdoing. Under such circumstances, dismissal is warranted under initial review. See Cipriani v. Buffardi, No. 9:06-CV-889 (GTS/DRH), 2007 WL 607341, at *1 (N.D.N.Y. Feb. 20, 2007) ("Dismissal is appropriate where a defendant is listed in the caption, but the body of the complaint fails to indicate what the defendant did to the plaintiff.") (citing Gonzalez v. City of New York, No. 97-CV-2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)); see also Crown v. Wagenstein, No. 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997) (same).
Further, to the extent Plaintiff has named these Defendants to establish liability based upon respondent superior, Plaintiff may not bring such a claim under Section 1983. See Hasan v. Onondaga Cty., No. 5:18-CV-806 (GLS/ATB), 2018 WL 4055296, at *10 (N.D.N.Y. Aug. 2, 2018), report-recommendation adopted by 2018 WL 4054105 (N.D.N.Y. Aug. 24, 2018). Nor has Plaintiff asserted any claims for supervisor liability under Colon.
Therefore, the Court recommends dismissing the complaint against the Sheriff, Undersheriff, Chief of Custody, Syracuse Police Officers, and Syracuse Police Chief without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
III. CONCLUSION
For the reasons stated above, the Court finds only Plaintiff's Fourth Amendment excessive force and Fourteenth Amendment deliberate indifference claims against Defendants P. Moore, C. Mahon and K. Kemple survive sua sponte review and recommends that the complaint be dismissed in its entirety as against all other Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
WHEREFORE, based on the findings above, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 4) is GRANTED; and it is further
Plaintiff should note that although his IFP Application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees.
ORDERED that the Clerk shall amend the docket to add Syracuse Police Officers P. Moore, C. Mahon, and K. Kemple as Defendants; and it is further
Also referred to as "K. Kemble," "K. Kimple," and "K. Kimble."
RECOMMENDED that the complaint (Dkt. No. 1) be dismissed in its entirety with prejudice as against Defendants Syracuse Police Department, Onondaga County Sheriff's Office, and Onondaga County Justice Center pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it is further
RECOMMENDED that the complaint (Dkt. No. 1) be dismissed in its entirety without prejudice as against Defendants Onondaga County, City of Syracuse, Sheriff, Undersheriff, Chief of Custody, Syracuse Police Officers, and Syracuse Police Chief pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it is further
RECOMMENDED that Plaintiff's Fourth Amendment excessive force and Fourteenth Amendment deliberate indifference claims against Defendants P. Moore, C. Mahon, and K. Kemple survive sua sponte review; and it is further
RECOMMENDED that if the District Court adopts this Report-Recommendation, the Clerk be directed to: (1) provide the superintendent of the facility that Plaintiff designated as his current location with a copy of Plaintiff's inmate authorization form (Dkt. No. 5) and notify that official that this action has been filed and that Plaintiff is required to pay the entire statutory filing fee of $350.00 pursuant to 28 U.S.C. § 1915 through periodic withdrawals from his inmate accounts; (2) provide a copy of Plaintiff's authorization form (Dkt. No. 5) to the Financial Deputy of the Clerk's Office; and (3) issue a summons and forward it, along with a copy of the complaint (Dkt. No. 1), to the United States Marshal for service upon Syracuse Police Officers P. Moore, C. Mahon and K. Kemple, and it is further
RECOMMENDED that Defendants P. Moore, C. Mahon and K. Kemple be ORDERED to file a formal response to Plaintiff's complaint as provided for in the Federal Rules of Civil Procedure subsequent to service of process; and it is further
ORDERED that all pleadings, motions, and other documents relating to this action must bear the case number assigned to this action and be filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be accompanied by a certificate showing that a true and correct copy of same was served on all opposing parties or their counsel. Any document received by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. Plaintiff must comply with all requests by the Clerk's Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all parties or their counsel , in writing, of any change in his address; his failure to do so will result in the dismissal of this action ; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a). Dated: December 20, 2019
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge