noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
How later courts described this case
- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
WILLIAM S. HOUSTON,
Plaintiff,
MEMORANDUM AND ORDER
-against- 20-CV-5253 (KAM) (AKT)
NASSAU COUNTY POLICE DEPARTMENT,
Defendant.
--------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff William S. Houston commenced this pro se
action pursuant to 42 U.S.C. § 1983 against defendant Nassau
County Police Department on October 30, 2020. (ECF No. 1,
Complaint (“Compl.”).) Plaintiff’s request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 is granted. (ECF No. 2.)
For the reasons set forth below, the complaint is dismissed and
Mr. Houston is granted 30 days leave from the date of this
Memorandum and Order to file an amended complaint.
BACKGROUND
The allegations set forth by Mr. Houston in his
complaint are assumed to be true for the purpose of this Order.
Plaintiff alleges that on May 21, 2018, he was taken to a
hospital after he “suffered a psychotic break,” at which time
his firearms were removed from his home by the Nassau County
Police Department and his spouse was given a signed receipt for
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the firearms that contained inaccurate information. (Compl. at
7.) On May 25, 2018, plaintiff “suffered a second or ongoing
psychotic break,” and was taken to a hospital where he
“voluntarily remained until on or about August 22, 2018.” (Id.)
On November 5, 2018, plaintiff went to the Nassau County Police,
Second Precinct and filed paperwork seeking to have his firearms
returned to him. (Id.) Plaintiff was subsequently sent a
receipt of his request and correspondence from defendant seeking
further proof of ownership of the firearms. (Id.) Plaintiff
alleges that he provided the requested proof of ownership on
November 28, 2018, via certified mail. (Id.) On April 2, 2019,
plaintiff was hospitalized again after a suicide attempt and
released on May 2, 2019 to an outpatient treatment program.
(Id.) On March 18, 2020, plaintiff requested information from
defendant regarding his case, but, to date, he has not received
a response or the return of his firearms. (Id.)
On February 10, 2020, plaintiff was notified by the
Utah Department of Public Safety that his concealed carry permit
in Utah was suspended because, as of May 30, 2018, he had been
placed on the National Instant Criminal Background Check System
(“NICS”) as an “Adjudicated or Committed Mental Defective,”
which disqualifies him from owning a firearm pursuant to 18
U.S.C. § 922(g) & (n) and N.Y. Penal Law § 400. (Compl. at 7-
2
8.) Plaintiff argues that he “received no hearing or
notification of this placement [on the list].” (Id. at 7.) On
September 17, 2020, plaintiff contacted the “New York State
Office of NICS Appeals and SAFE Act”1 and “requested data on why
he was on the prohibited persons list, whether the firearms were
whole or destroyed, and the process used in order to be removed
from the NICS prohibited persons list.” (Id. at 8.)
Thereafter, the NICS office confirmed that plaintiff’s hospital
admissions on May 25, 2018 and April 2, 2019, “were the
qualifying incidents sent to the federal NICS database by [New
York State.]” (Id.) In the instant action, plaintiff seeks,
inter alia, to be removed from the NICS prohibited persons list
and the return of his firearms. (Id. at 9.) As set forth
below, plaintiff may seek relief according to state procedures
but not before this court.
STANDARD OF REVIEW
A complaint 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 is plausible “when
1 “New York’s Secure Ammunition and Firearms Enforcement Act of 2013 (the
“SAFE Act”) was enacted in January 2013, following a series of mass shootings
around the United States by mentally disturbed individuals. At least some of
the shooters in these incidents were able to legally obtain firearms even
though they were known to be dangerous by their mental health treatment
provider.” Montgomery v. Cuomo, 291 F.Supp.3d 303, 307 (W.D.N.Y. Mar. 5,
2018).
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the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se
complaint, the court must be mindful that a plaintiff’s
pleadings should be held “to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 104–05 (1976)); see Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (noting that even after Twombly, the court
“remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, under 28 U.S.C. § 1915(e)(2)(B), a district court
shall dismiss an in forma pauperis action where the court is
satisfied 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.”
DISCUSSION
Plaintiff brings this lawsuit pursuant to 42 U.S.C. §
1983 (“Section 1983”). “Section 1983 provides a cause of action
4
against any person who deprives an individual of federally
guaranteed rights ‘under color’ of state law.” Filarsky v.
Delia, 566 U.S. 377, 383 (2012) (quoting 42 U.S.C. § 1983).
“Thus, to state a claim under Section 1983, a plaintiff must
allege: (1) the deprivation of any rights, privileges, or
immunities secured by the Constitution and its laws, and (2)
that the deprivation was ‘committed by a person acting under the
color of state law.’” Harrison v. New York, 95 F. Supp. 3d 293,
321 (E.D.N.Y. 2015) (quoting Ciambriello v. Cty. of Nassau, 292
F.3d 307, 323 (2d Cir. 2002)).
I. Nassau County Police Department as a Defendant
As a preliminary matter, the Court concludes that
plaintiff’s complaint cannot proceed because the only named
defendant, the Nassau County Police Department, is not a proper
defendant under plaintiff’s Section 1983 claim. See, e.g., Nash
v. Cty. of Nassau, No. 16-cv-2148 (JFB)(AYS), 2019 WL 1367159,
at *4 (E.D.N.Y. Mar. 26, 2019) (“[T]he Nassau County Police
Department is not a proper defendant for any of plaintiff's
Section 1983 claims.”). It is well-established that “[u]nder
New York law, departments that are merely administrative arms of
a municipality do not have a legal identity separate and apart
from the municipality and, therefore, cannot sue or be sued.”
Perros v. County of Nassau, 238 F. Supp. 3d 395, 400 (E.D.N.Y.
5
2017). Accordingly, for this reason, plaintiff’s complaint
fails to state a plausible claim for relief under Section 1983
and must be dismissed. 28 U.S.C. § 1915(e)(2)(B).
II. Plaintiff’s Fourteenth Amendment Equal Protection Claim
Even assuming plaintiff correctly identified a
defendant liable under the Section 1983, the complaint fails to
state a plausible Equal Protection claim under the Fourteenth
Amendment. The Equal Protection Clause of the Fourteenth
Amendment requires the government to treat all similarly
situated people alike. City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). The Equal Protection
Clause “bars the government from selective adverse treatment of
individuals compared with other similarly situated individuals
if ‘such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.’” Bizzarro v. Miranda, 394
F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627
F.2d 606, 609-10 (2d Cir. 1980)). To state a viable claim for
denial of equal protection, a plaintiff must generally allege
“purposeful discrimination . . . directed at an identifiable or
suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.
1995).
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Here, plaintiff alleges that he “received no hearing
or notification of [his] placement [on the NICs list], thereby
violating [his] 14th Amendment, Section 1 right to equal
protection of the law.” (Compl. at 7.) Mr. Houston’s
complaint, as currently drafted, fails to state an Equal
Protection claim because he has not identified a suspect class
subject to differential treatment. See, e.g., Reid v. City of
New York, No. 19-cv-324 (AMD)(ST), 2019 WL 1573370, at *3
(E.D.N.Y. Apr. 11, 2019) (dismissing Equal Protection claim
where “plaintiff does not allege that he is a member of a
particular class”).
To the extent plaintiff’s Fourteenth Amendment claim
is based on a violation of his due process rights, his claim
also fails because state law provides an adequate remedy for the
deprivation of his property interest in his firearm. See Vialez
v. N.Y.C. Hous. Auth., 783 F.Supp. 109, 114 (S.D.N.Y. 1991)
(“[W]here a plaintiff alleges a deprivation of property in
violation of the due process clause, the federal court’s initial
inquiry must be whether the state has provided adequate remedies
to redress such unlawful acts. If so, there will be no claim
before the federal court, whether or not plaintiff took
advantage of the state procedure.”). New York Mental Hygiene
Law § 7.09 sets forth a process for removing a name from the
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NICS list by seeking a certificate of relief from disabilities,
which is based on a determination as to whether the “person’s
record and reputation are such that such person will not be
likely to act in a manner dangerous to public safety and where
the granting of the relief would not be contrary to public
safety.” See N.Y. Mental Hyg. Law § 7.09; N.Y. Comp. R. & Regs.
§ 543.5(2)-(6). If the application to be removed from the list
is denied, an individual may seek review in state court pursuant
to Article 78 of the New York Civil Practice Law and Rules.
N.Y. Mental Hyg. Law § 7.09(2); see Phelps v. Bosco, No. 13-cv-
1510, 2017 WL 437407, at *17 (N.D.N.Y. Feb. 1, 2017). “It is
settled law in this Circuit that ‘an Article 78 proceeding
provides the requisite post-deprivation process -- even if a
plaintiff failed to pursue it.’” Montalbano v. Port Auth. of
New York & New Jersey, 843 F. Supp. 2d 473, 485 (S.D.N.Y. 2012)
(quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 121 (2d
Cir. 2011)); Johnson El ex rel. Johnson v. DeProspo, No. 19-cv-
8426 (CM), 2019 WL 6311882, at *4 (S.D.N.Y. Nov. 22,
2019)(“Courts have held that a proceeding under Article 78 of
the New York Civil Practice Law and Rules is an adequate remedy
to challenge decisions with respect to firearms licenses.”).
Here, plaintiff states that he contacted the New York
State Office of NICS Appeals and SAFE Act on September 17, 2020,
8
and received information stating that his May 25, 2018 and April
2, 2019, hospital admissions were qualifying incidents, but he
does not allege that he has sought a certificate of relief from
disabilities.2 (Compl. at 8.) In any event, even if plaintiff
did seek a certificate and was denied, he must seek further
relief in state court. Accordingly, because state law provides
an adequate remedy for the deprivation of Mr. Houston’s property
interest in his firearm, he has failed to state a claim under
the Fourteenth Amendment for a due process violation.
CONCLUSION
For the reasons set forth above, plaintiff’s complaint
is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure
to state a plausible clam for relief under Section 1983. In
light of this court’s duty to liberally construe pro se
pleadings, and in an abundance of caution, plaintiff is granted
30 days leave from the date of this Order to file an amended
complaint in accordance with this Memorandum and Order.
Plaintiff’s amended complaint must comply with Rule
8(a) of the Federal Rules of Civil Procedure. Should plaintiff
2 See Phelps, 2017 WL 437407, at *16 (“The application form for a
certificate of relief from disabilities related to firearms, and further
information regarding the process, are available on the website for the
Office of NICS Appeals and New York State Secure Ammunition and Firearms
Enforcement Act.”); see also Certificate of Relief Process and Forms,
available at: https://nics.ny.gov/requirements.html (last visited Dec. 11,
2020).
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elect to file an amended complaint, the amended complaint must
set forth the factual allegations to support his claims against
all named defendants. Plaintiff must identify each defendant in
both the caption and the body of the amended complaint, and name
as proper defendants only those individuals who have personal
involvement in the actions he alleges in the amended complaint.
Plaintiff must also provide the dates and locations for each
relevant event.
Plaintiff is advised that an amended complaint does
not simply add to the first complaint. Once an amended
complaint is filed, it completely replaces the original.
Therefore, plaintiff must include in the amended complaint all
the necessary information that was contained in the original
complaint. The amended complaint must be captioned as an
“Amended Complaint” and bear the same docket number as this
order. If plaintiff fails to file an amended complaint within
the time allowed or fails to cure the deficiencies discussed in
this Memorandum and Order, this case will be dismissed and
judgment shall be entered in favor of defendant.
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The Clerk of the Court is respectfully directed to
mail a copy of this Memorandum and Order to plaintiff at the
address listed on the docket and note service on the docket.
SO ORDERED.
/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
Dated: Brooklyn, New York
December 23, 2020
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