Avant v. Miranda

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RICKEY AVANT,

Plaintiff,

MEMORANDUM & ORDER

-against- 21-CV-0974(JS)(SIL)

DETECTIVE JUAN MIRANDA,

DETECTIVE ANTHONY COUSINS,

LT. STEVEN L. HOROWITZ,

SGT. BRIAN S. CONNOLLY, and

HEMPSTEAD POLICE DEPARTMENT,

Defendants.

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APPEARANCES

For Plaintiff: Rickey Avant, pro se

2020001153

Nassau County Correctional Center

100 Carman Avenue

East Meadow, New York 11554

For Defendants: No appearances.

SEYBERT, District Judge:

On or around February 22, 2021, pro se plaintiff Rickey

Avant (“Plaintiff”) filed a civil rights Complaint pursuant to

42 U.S.C. § 1983 (“Section 1983”) against Detective Juan Miranda

(“Det. Miranda”), Detective Anthony Cousins (“Det. Cousins”),

Lieutenant Steven L. Horowitz (“Lt. Horowitz”), Sergeant Brian S.

Connolly (“Sgt. Connolly”), and the Hempstead Police Department

(the “HPD,” and collectively, “Defendants”). (See Compl., ECF No.

1.) Plaintiff also filed an application to proceed in forma

1

pauperis (“IFP”). (IFP Mot., ECF No. 2.) For the reasons that

follow: (1) Plaintiff’s application to proceed in forma pauperis

GRANTED; (2) Plaintiff’s Section 1983 claims against the HPD are

DISMISSED WITH PREJUDICE; (3) Plaintiff’s Section 1983 claims

against Det. Miranda, Det. Cousins, Lt. Horowitz, and Sgt. Connolly

are DISMISSED WITHOUT PREJUDICE; (3) this action is STAYED pending

the conclusion of Plaintiff’s underlying state court criminal

proceeding; and (4) Plaintiff is GRANTED leave to file an amended

complaint after resolution of the underlying criminal proceeding.

BACKGROUND1

Plaintiff utilized the Court’s Section 1983 complaint

form and alleges:

On June 11, 2020 at 4:37 p.m. at 100 Terrace

Ave. in Hempstead, NY 11550, Detectives Juan

Miranda Shield # 198, & Anthony Cousins Shield

# 1217 unlawfully seized me & violated my

Constitutional rights (4th Amendment) by

drawing their guns on me, depriving me of my

liberty of movement, invading my privacy &

arresting me for a crime that they thought I

had committed. They also filed false felony

complaints in the Hempstead Police Department

Accusing me of being a suspect of a crime that

I did not commit & now my freedom has been

taken from me.

1 Excerpts from the Complaints are reproduced exactly as they appear in

the original. Errors in spelling, punctuation, and grammar have not

been corrected or noted.

2

(Compl. at ECF p. 2.)2 Plaintiff further alleges that: “Yes

medical treatment was received. I was taken to the Nassau County

Medical Center to receive a medical treatment for my Asthma. This

arrest caused me to have an Asthma attack.” (Id. ¶ II.A.)

As for relief, Plaintiff seeks damages award in:

the sum of $1 million for false imprisonment,

pain & suffering, & cruel & unusual punishment

for the hardship I had to endure being locked

down in Nassau County Jail during an epidemic.

I also want to be reimbursed for all the money

my family spent supporting me on commissary,

packages, mail postage, & collect calls.

(Id. at ECF p. 3, ¶ III.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that

Plaintiff is qualified by his financial status to commence this

action without prepayment of the filing fee. See 28 U.S.C. §

1915(a)(1). Therefore, Plaintiff’s request to proceed in forma

pauperis is GRANTED.

2 When citing to the Complaint, the Court refers to the page numbers

generated by the Court’s Electronic Case Filing system.

3

II. Consideration of 28 U.S.C. § 1915

28 U.S.C. § 1915 requires a district court to dismiss an

in forma pauperis complaint if the action is frivolous or

malicious, fails to state a claim upon which relief may be granted,

or seeks monetary relief against a defendant who is immune from

such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).

An action is frivolous as a matter of law when, inter alia, it is

based on an “indisputably meritless legal theory” or when it “lacks

an arguable basis in law . . ., or [when] a dispositive defense

clearly exists on the face of the complaint.” Livingston v.

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The

Court is required to dismiss the action as soon as it makes such

a determination. See 28 U.S.C. § 1915A.

Courts are obliged to construe the pleadings of a pro se

plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient 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.”

4

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id. at 678; accord Wilson

v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While

“‘detailed factual allegations’” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

With these standards in mind, the Court considers

Plaintiff’s claims below.

III. Analysis of Plaintiff’s Claims Pursuant to Section 1983

Section 1983 provides that

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . ..

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff

must “allege 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.” Rae v. Cnty. of

Suffolk, 693 F. Supp. 2d 217, 223 (E.D.N.Y. 2010) (quoting Snider

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v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)). Section 1983 “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).

A. Plaintiff’s Section 1983 Claims Against the HPD are

Dismissed With Prejudice

It is well-established that “under 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.” Davis v.

Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002).

Thus, Plaintiff’s claims against the HPD cannot proceed because

the HPD has no legal identity separate and apart from the

Incorporated Village of Hempstead (the “Village”). Accordingly,

the claims against the HPD are DISMISSED WITH PREJUDICE pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). See, e.g., Bussey

v. Devane, No. 13-CV-3660, 2013 WL 4459059, at *5 (E.D.N.Y. Aug.

16, 2013) (dismissing Section 1983 claims against the HPD because

it lacks the capacity to be sued).

Given Plaintiff’s pro se status, the Court liberally

construes the Complaint to assert a Section 1983 claim against the

municipality, the Village. As discussed below, any claims against

the Village are dismissed without prejudice.

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It is well-established that a municipality, such as the

Incorporated Village of Hempstead, cannot be held liable under

Section 1983 on a respondeat superior theory. See Monell v. Dep’t

of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (1978); Roe v. City of

Waterbury, 542 F.3d 31, 36 (2d Cir. 2008). To prevail on a Section

1983 claim against a municipality, a plaintiff must show “that

‘action pursuant to official municipal policy’ caused the alleged

constitutional injury.” Cash v. Cty. of Erie, 654 F.3d 324, 333

(2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51, 60

(2011)); see also Monell, 436 U.S. at 690-91. “[L]ocal

governments . . . may be sued for constitutional deprivations

visited pursuant to governmental ‘custom’ even though such a custom

has not received formal approval through the body’s official

decisionmaking channels.” Monell, 436 U.S. at 690-91 (internal

citation omitted).

To establish the existence of a municipal policy or

custom, the plaintiff must allege: (1) the existence of a formal

policy which is officially endorsed by the municipality, see

Connick, 563 U.S. at 60-61; (2) actions taken or decisions made by

municipal policymaking officials, i.e., officials with final

decisionmaking authority, which caused the alleged violation of

the plaintiff’s civil rights, see Amnesty Am. v. Town of W.

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Hartford, 361 F.3d 113, 126 (2d Cir. 2004); Jeffes v. Barnes, 208

F.3d 49, 57 (2d Cir. 2000); (3) a practice “so persistent and

widespread as to practically have the force of law,” Connick, 563

U. S. at 61; see also Green v. City of N.Y., 465 F.3d 65, 80 (2d

Cir. 2006), or that “was so manifest as to imply the constructive

acquiescence of senior policy-making officials,” Patterson v. Cty.

of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (internal

quotation marks and citations omitted); or (4) that “a policymaking

official exhibit[ed] deliberate indifference to constitutional

deprivations caused by subordinates” Cash, 654 F.3d at 334

(internal quotation marks and citations omitted); see also Okin v.

Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 439 (2d

Cir. 2009) (A municipal custom may be found when “faced with a

pattern of misconduct, [the municipality] does nothing, compelling

the conclusion that [it] has acquiesced in or tacitly authorized

its subordinates’ unlawful actions.” (citation omitted) (second

alteration in original)).

Here, when liberally construing the Complaint, there are

no factual allegations from which the Court could reasonably

construe a plausible Section 1983 cause of action against the

Village. Accordingly, to the extent alleged, claims against the

Village are DISMISSED WITHOUT PREJUDICE.

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B. Plaintiff’s Section 1983 Claims Against Lt. Horowitz and

Sgt. Connolly are Dismissed Without Prejudice

Although Plaintiff names Lt. Horowitz and Sgt. Connolly

in the caption of the Complaint, neither Defendant is mentioned in

the body of the Complaint. “It is well settled that, in order to

establish a defendant’s individual liability in a suit brought

under § 1983, a plaintiff must show, inter alia, the defendant’s

personal involvement in the alleged constitutional deprivation.”

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).

Thus, “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, *2 (S.D.N.Y.

Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d

Cir. 1986)).

Moreover, as the Second Circuit recently made clear,

“there is no special rule for supervisory liability” and, “[t]o

hold a state official liable under § 1983, a plaintiff must plead

and prove the elements of the underlying constitutional violation

directly against the official without relying on a special test

for supervisory liability.” Tangreti v. Bachmann, 983 F.3d 609,

619-20 (2d Cir. 2020). Where a Section 1983 claim fails to allege

a defendant’s personal involvement, the claim fails as a matter of

law. See Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).

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Here, as is readily apparent, Plaintiff has not alleged

factual allegations of conduct or inaction attributable to

Lt. Horowitz or Sgt. Connolly. The failure to allege any facts

demonstrating their personal involvement is fatal to Plaintiff’s

Section 1983 claims against Lt. Horowitz or Sgt. Connolly. See

Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d

Cir. 2013) (holding that a plaintiff proceeding under Section 1983

must allege facts showing the defendants’ direct and personal

involvement in the alleged constitutional deprivation).

Accordingly, Plaintiff’s Section 1983 claims against Lt. Horowitz

and Sgt. Connolly are DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b).

C. Plaintiff’s Section 1983 Claims Against Det. Miranda and

Det. Cousins are Dismissed Without Prejudice

Plaintiff alleges that Det. Miranda and Det. Cousins

unlawfully seized me & violated my

Constitutional rights (4th Amendment) by

drawing their guns on me, depriving me of my

liberty of movement, invading my privacy &

arresting me for a crime that they thought I

had committed. They also filed false felony

complaints in the Hempstead Police Department

accusing me of being a suspect of a crime that

I did not commit & now my freedom has been

taken from me.

(Compl. at ECF p. 2.) The Court construes these allegations as

asserting false arrest and false imprisonment claims against

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Det. Miranda and Det. Cousins.

A Section 1983 claim for false arrest “is substantially

the same as a claim for false arrest under New York law.”3 Bonadies

v. Town of Amenia, No. 19-CV-10890, 2020 WL 5209510, at *10

(S.D.N.Y. Aug. 31, 2020) (quoting Weyant v. Okst, 101 F.3d 845,

852 (2d Cir. 1996)). To succeed on a false arrest claim under New

York law, a plaintiff must show that “(1) the defendant intended

to confine the plaintiff, (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement,

and (4) the confinement was not otherwise privileged.” Wheeler

v. Kolek, No. 16-CV-7441, 2020 WL 6726947, at *4 (S.D.N.Y. Nov.

16, 2020) (internal quotation marks and citation omitted); see

also Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012).

The existence of probable cause is a complete bar to a claim for

false arrest. Ackerson v. City of White Plains, 702 F.3d 15, 19

(2d Cir. 2012) (“Probable cause is a complete defense to an action

for false arrest.”) (citation and internal quotation marks

omitted).

3 “Plaintiff’s false arrest and false imprisonment claims are addressed

together for the purposes of this court’s analysis.” Montes v. O’Shea,

No. 21-CV-0303, 2021 WL 1759853, at *3 n.6 (N.D.N.Y. Apr. 6, 2021),

Report and Recommendation Adopted, 2021 WL 1758858 (N.D.N.Y. May 4, 2021)

(citing Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991) (“False arrest

is simply an unlawful detention or confinement brought about by means

of an arrest rather than in some other way and is in all other respects

synonymous with false imprisonment.”)).

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Further, “[a]n arrest is privileged as a matter of law

if the individual claiming false arrest is convicted of the crime

for which he or she was arrested.” Icangelo v. Doe, No. 13-CV-

1638, 2013 WL 1455313, at *2 (E.D.N.Y. Apr. 2, 2013); see also

Sanchez v. Miller, No. 20-CV-0620, 2020 WL 1140843, at *6 (S.D.N.Y.

Mar. 6, 2020) (“[A] civil rights plaintiff cannot pursue claims

that would necessarily be inconsistent with a conviction.”).

Therefore, if plaintiff is subsequently convicted of the charges

for which he was arrested, to recover damages for an allegedly

false arrest, he “must prove 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[.]” Heck v. Humphrey, 512

U.S. 477, 486-87 (1994).

First, following this guidance, the Court takes judicial

notice that New York State Office of Court Administration records

reflect that Judge Robert G. Bogle scheduled an appearance for

June 7, 2021 relating to the arrest that forms the basis of

Plaintiff’s Complaint here.4

4 (https://iapps.courts.state.ny.us/webcrim_attorney/DefendantSearch

(last visited May 17, 2021)); Toussaint v. Guadarama, No. 21-CV-0032,

2021 WL 1648648, at *1 n.1 (D. Conn. Apr. 27, 2021) (“The Court may

‘take judicial notice of relevant matters of public record.’” (quoting

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Second, although the charges that form the basis of the

Complaint are pending, the Court finds that Heck, cited above,

does not bar Plaintiff’s claims here. Specifically, “Heck bars a

§ 1983 claim based on an extant conviction, but it has no

application to an anticipated future conviction.” Stegemann v.

Rensselaer Cty. Sheriff’s Office, 648 F. App’x 73, 76 (2d Cir.

2016); see Wallace v. Kato, 549 U.S. 384, 393 (2007) (rejecting

the argument that “an action which would impugn an anticipated

future conviction cannot be brought until that conviction occurs

and is set aside” and stating “[w]e are not disposed to embrace

this . . . extension of Heck” (emphasis in original)); McDonough

v. Smith, 139 S. Ct. 2149, 2157 (2019) (noting that “some claims

do fall outside Heck’s ambit when a conviction is merely

‘anticipated’” (citations omitted)). Accordingly, “the pending

criminal charges do not, . . ., bar Plaintiff’s false arrest and

false imprisonment claims.” Myers v. Municipality of Greene Cty.,

No. 19-CV-0325, 2020 WL 204296, at *4 (N.D.N.Y. Jan. 14, 2020).

Third, because Plaintiff is awaiting trial and/or the

charges remain pending, “his false arrest claim is premature.”

Hall v. Salaway, No. 20-CV-4651, 2021 WL 826169, at *4 (E.D.N.Y.

Mar. 3, 2021); Birdsall v. City of Hartford, 249 F. Supp. 2d 163,

Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012))).

13

171 (D. Conn. 2003) (“It is well settled in the Second Circuit

that in order to prevail on a cause of action for false arrest .

. ., a plaintiff must prove that the underlying criminal proceeding

terminated in his favor.” (citation omitted)). As discussed

below, the Court stays this action pending resolution of the

underlying criminal proceeding.

Fourth, even when considering the merits, the Court

finds that Plaintiff’s false arrest and false imprisonment claims

must be dismissed. It is well-established that “if ‘the facts

known by the arresting officer at the time of the arrest

objectively provided probable cause to arrest,’ the arrest is

privileged, and the plaintiff cannot state a claim for false

arrest.” Sanchez, 2020 WL 1140843, at *6 (quoting Devenpeck v.

Alford, 543 U.S. 146, 152 (2004)). “Officers have probable cause

to arrest when they 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 . . . a crime.’” Id.

(alterations in original) (quoting Jaegly v. Couch, 439 F.3d 149,

152 (2d Cir. 2006)). To that extent, “police officers may have

had probable cause to arrest if they have acted reasonably, even

if they were mistaken.” Id. (collecting cases).

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Moreover, “[a]n arrest pursuant to a warrant is presumed

to be reasonable under the Fourth Amendment because such warrants

are issued only after a showing of probable cause.” Id. (citing

Walczyk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007)) (further

citation omitted). Plaintiff may rebut the presumption of

probable cause “only if he alleges facts suggesting that the arrest

warrant was facially invalid or that it was procured through fraud,

perjury, or the misrepresentation or falsification of evidence.”

Id. (quoting Vasquez v. Reilly, No. 15-CV-9528, 2017 WL 946306, at

*7 (S.D.N.Y. Mar. 9, 2017)).

Here, Plaintiff asserts only that Defendants “unlawfully

seized me & violated my constitutional rights (4th Amendment) by .

. . depriving me of my liberty of movement, invading my privacy &

arresting me for a crime that they thought I had committed.”

(Compl. at ECF p. 2.) The claims fail because the Complaint fails

to allege facts “suggesting that the arrest was not privileged.”

Sanchez, 2020 WL 1140843, at *6. Thus, the false arrest and false

imprisonment claims are DISMISSED WITHOUT PREJUDICE.

15

IV. This Action is Stayed Pending Resolution of the Underlying

Criminal Case

Because Plaintiff’s criminal case is ongoing, as noted

above, this action is STAYED pending the conclusion of the

underlying criminal proceeding. Wallace, 549 U.S. at 393–94 (“If

a plaintiff files a false arrest claim before he has been convicted

(or files any other claim related to rulings that will likely be

made in a pending or anticipated criminal trial), it is within the

power of the district court, and in accord with common practice,

to stay the civil action until the criminal case or the likelihood

of a criminal case is ended.” (citations omitted)); Stegemann, 648

F. App’x at 78 (noting where, as here, the “underlying criminal

action is ongoing, the better course might be for the District

Court to hold [the plaintiff’s] civil action in abeyance until a

judgment of conviction has been entered in [the underlying]

criminal case”); see also Hall, 2021 WL 826169, at *6 (collecting

cases). The Clerk of the Court shall administratively CLOSE this

case. Plaintiff is GRANTED leave to request, in writing, that

this case be reopened within two (2) weeks after the conclusion of

his state court criminal proceeding, if so warranted at that time.

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V. Plaintiff is Granted Leave to File an Amended Complaint Upon

Resolution of the Underlying Criminal Case

A pro se plaintiff should ordinarily be given the

opportunity “to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.”

Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)

(internal quotation marks and citation omitted). Therefore,

Plaintiff is GRANTED leave to to submit an Amended Complaint in

accordance with this Order following the conclusion of the on-

going criminal proceedings against Plaintiff in state court. See

Hall, 2021 WL 826169, at *6 (collecting cases).

In any Amended Complaint, Plaintiff must provide the

names of the individual officers he alleges falsely arrested and

imprisoned him and allege facts suggesting that the officers did

not have probable cause to arrest and imprison him. If Plaintiff

was arrested pursuant to a warrant, the Amended Complaint “must

allege facts suggesting that the warrant was facially invalid or

that it was procured through fraud, perjury, or the

misrepresentation or falsification of evidence.” Sanchez, 2020

WL 1140843, at *6 (internal quotation marks and citation omitted).

“Conclusory assertions that [Plaintiff] was ‘illegally’ or

‘unlawfully’ arrested are not sufficient to state a claim under”

Section 1983. Id. Finally, if Plaintiff is “subsequently

17

convicted of the charges for which he was arrested, in order to

recover damages for an allegedly false arrest, he ‘must provide

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[.]’” Id.

(quoting Heck, 512 U.S at 486-87).

CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that

Plaintiff’s application to proceed in forma pauperis (ECF No. 2)

is GRANTED; and

IT IS FURTHER ORDERED that Plaintiff’s claims against

the HPD are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b); and

IT IS FURTHER ORDERED that Plaintiff’s claims against

Defendants Lt. Horowitz, Sgt. Connolly, Det. Miranda, and Det.

Cousins are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b); and

IT IS FURTHER ORDERED that Plaintiff is granted leave to

file an Amended Complaint. However, this action is STAYED pending

the resolution of the underlying criminal case; and

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IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to

request in writing that this case be re-opened within two (2) weeks

from the conclusion of the underlying criminal case, if so

warranted at that time; and

IT IS FURTHER ORDERED that the Clerk of the Court shall

(1) administratively close this case and (2) mail a copy of this

Order to the pro se Plaintiff; and

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;

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.

/s/ JOANNA SEYBERT ____

Joanna Seybert, U.S.D.J.

Dated: May 18 , 2021

Central Islip, New York

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