The opinion
IN Cleon het
US DISTAIGT OFF -
S DISTRICT COURT □
x BBC24Y 2099
UNITED STATES DISTRICT COURT or *
EASTERN DISTRICT OF NEW YORK BRQ
cena: cpegueuempeneneee KLYN OFF ICE
SPATIN J. VEHAP,
Plaintiff,
v. MEMORANDUM AND ORDER
19-CV-6155 (WFK) (RER)
CITY OF NEW YORK,
JOHN DOE and JANE DOE 1-20,
Defendants.
capes RRLeMNe a Reena ndlrretaaemen I:
WILLIAM F, KUNTZ, II, United States District Judge:
Plaintiff Spatin J. Vehap, appearing pro se, filed this action against the City of New
York, the New York City Police Department, and the Corporation Counsel, Assistant Police
Commissioner John Miller, and unidentified John and Jane Doe, supervisors and officers. By
Memorandum and Order dated November 15, 2019 (“November Order”), the Court granted
Plaintiff's application to proceed in forma pauperis, dismissed the Complaint, and granted
Plaintiff leave to file an amended complaint within 30 days. On December 13, 2019, Plaintiff
filed an Amended Complaint with supporting documents pursuant to 42 U.S.C. § 1983. For the
reasons set forth below, the Amended Complaint is dismissed.
BACKGROUND
Plaintiff alleges that since March 1, 2018 to the present, officers have attempted to entrap
him by using neighbors and other people he knows to try to gain entry to his apartment. PI.
Nature of Action at 2-5; Pl. Supp. Brief at 1. Specifically, Plaintiff alleges that on March 5,
2018, he found that his dog was sick and that personal items were missing or damaged from his
apartment. /d. at 10. Plaintiff further alleges that on March 30, 2018, officers removed “items
]
from locked closets,” and on April 1, 2018, officers entered his apartment without a warrant and
stole oxycodone pills, clothing, and cash. Pl. Supp. Brief at 6. Plaintiff alleges that he has
sustained injuries from “remote electronic harassment,” including but not limited to, joint pain,
muscle spasms, heart palpitations, blisters, “brain zaps” and weight loss. /d. at 3-4. Plaintiff
further alleges that this is “being done” “by stealth and unseen from the ‘operator’s perch’ above
[Plaintiff's] apartment and besides (adjacent to).” Jad. at 4. Plaintiff credits his use of “x-ray
dental aprons,” “multiple levels of aluminum layers covered over by wool blankets,” “silver
mesh and copper mesh fabrics” and “wearing boots to sleep” to “deflect these constant attacks.”
Id. at 4-5. He seeks unspecified damages and injunctive relief. Am. Compl. at 6; Pl. Nature of
Action at 5; Pl. Supp. Brief at 24.
STANDARD OF REVIEW
In reviewing the Amended Complaint, the Court is mindful that Plaintiff is proceeding
pro se and that his pleadings should be held “‘to less stringent standards than formal pleadings
drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980); accord Erickson v. Pardus, 551
U.S. 89, 94 (2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A complaint, however, must
plead “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). Moreover, pursuant to
the in forma pauperis statute, the Court must dismiss the action if it determines that it “(i) is
frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (ili) seeks
monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
An action “is frivolous when either: (1) the factual contentions are clearly baseless, such as when
allegations 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) (internal quotation marks and citation omitted). “[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992); see also Neitzke v. Williams, 490 U.S. 319, 327 (1989).
DISCUSSION
In order to maintain a 42 U.S.C. § 1983 action, a plaintiff must show that the defendant
(a) acted under color of state law (b) to deprive the plaintiff of a right arising under the
Constitution or federal law. Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (citing Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1984)). This statute “creates no substantive rights; it provides
only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993); see also Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
Section 1983 claims are generally brought against the individuals personally responsible for the
alleged deprivation of constitutional rights, not against government entities or agencies where
those individuals are employed.
Plaintiff's Amended Complaint cannot proceed against the City of New York for the
same reasons outlined in the Court’s November Order. Municipal liability under § 1983 arises
when the challenged action was taken pursuant to a municipal policy or custom. See Monell v,
Dep't of Soc. Servs., 436 U.S. 658, 691-95 (1978).
3
Despite Plaintiff's conclusory allegations to the contrary, he has not alleged such a
policy, nor has he alleged the required “direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989).
It is well-settled that a plaintiff's conclusory allegations, which merely recite the elements of a
Monell claim, are insufficient to state a claim for municipal liability. See, e.g., Giaccio v. City of
New York, 308 F. App’x 470, 472 (2d Cir. 2009) (affirming dismissal of a Mone// claim where
the plaintiff identified, “at most, only four examples” of constitutional violations, because “[t]his
evidence falls far short of establishing a practice that is so persistent and widespread as to justify
the imposition of municipal liability” (internal quotations omitted)); Treadwell v. Cty. of Putnam,
14 Civ. 10137, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (Karas, J.) (holding that the
plaintiff “failed to sufficiently state a Monel/ claim” where the complaint lacked “any specific
allegations”... “but instead merely detail[ed] an isolated series of incidents”). Therefore,
Plaintiff fails to state a claim against the City of New York. 28 U.S.C. § 1915(e)(2)(B).
Plaintiff's Amended Complaint cannot proceed against the New York City Law
Department for the same reasons outlined in the Court’s November Order. Section 396 of the
Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the violation
of any law shall be brought in the name of the city of New York and not in that of any agency,
except where otherwise provided by law.” N.Y. City Charter Ch. 17, § 396. That provision “has
been construed to mean that New York City departments [such as the Law Department or the
Corporation Counsel], as distinct from the City itself, lack the capacity to be sued. See Jenkins v.
City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007). Therefore, Plaintiff fails to state a claim
against the New York City Law Department. 28 U.S.C. § 1915(e)(2)(B).
Plaintiff's Amended Complaint cannot proceed against John/Jane Doe 1-20. Asa
prerequisite to a damage award under § 1983, a plaintiff must allege the defendant’s direct or
personal involvement in the alleged constitutional deprivation. “It is well-settled in this Circuit
that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to
an award of damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (citing
Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)); see also Spavone v. N.Y. Dep’t of Corr.
Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995)). Here, Plaintiff merely concludes that “officers” entered his apartment, but he does not
provide any identifying information from which the Court or Defendants could ascertain the
identity of such “officers” and whether such officers caused him to sustain any constitutional
harm. Rather, Plaintiff names private parties as having access to his apartment. Pl. Nature of
Action at 2. “[T]he under-color-of-state-law element of [section] 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted).
Furthermore, the Court finds that Plaintiff's allegations of electronic monitoring from the
apartment above and adjacent to his apartment to rise to the level of “fanciful, fantastic, or
delusional.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (internal quotation marks
omitted); Denton, 504 U.S. at 33; see also Neitzke, 490 U.S. at 327. Therefore, Plaintiff fails to
state a claim against John and Jane Doe 1-20. 28 U.S.C. § 1915(e)(2)(B).
CONCLUSION
Accordingly, the action, filed in forma pauperis, is dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Memorandum and Order would not be taken in good faith and therefore
in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369
U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED. oD
— eet
s/WFK
WILLIAM F. KUNTZ,
United States District Judge
Dated: January 14, 2020
Brooklyn, New York