Gibson v. Grant

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

DONALD GIBSON,

Plaintiff,

ORDER OF PARTIAL DISMISSAL

-against- 20-CV-4421 (RRM) (LB)

POLICE OFFICER TERIQ C. GRANT, Shield No.

12175; POLICE OFFICER JOHN DOE; JOHN DOE

KINGS COUNTY DISTRICT ATTORNEY (ADA),

Defendants.

----------------------------------------------------------------x

ROSLYNN R. MAUSKOPF, United States District Judge:

On September 16, 2020, Plaintiff Donald Gibson, currently incarcerated at the Collins

Correctional Facility, filed the instant pro se action pursuant to 42 U.S.C. § 1983. The Court

grants Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For the

reasons discussed below, Plaintiff’s claim against John Doe, Assistant District Attorney, is

dismissed for failure to state a claim upon which relief may be granted. Plaintiff’s complaint

will proceed against Officer Teriq C. Grant and the John Doe Officer, once that officer is

identified.

BACKGROUND

The following facts are drawn from Plaintiff’s pleading, the allegations of which are

assumed to be true for purposes of this memorandum and order. On October 1, 2017, Plaintiff

was a passenger in a rental car which was stopped by Officer Teriq C. Grant and his partner,

allegedly for a broken taillight. (Compl. (Doc. No. 1) at 4.)1 The driver of the car informed the

1 Since the complaint is not paginated, the Court uses the page numbers assigned to the complaint by the Court’s

Electronic Case Filing system.

1

officers that he was carrying a registered firearm and a subsequent search of the vehicle revealed

additional firearms, including an assault rifle located in the trunk of the car. (Id. at 5.)

On October 1, 2017, Plaintiff was arrested and charged with criminal possession of a

weapon. On October 3, 2017, he was remanded to custody and thereafter charged with violating

the conditions of his release in another, unrelated case by being in possession of the assault rifle

and failing to report his arrest to his parole officer. (Id. at 6, 15). On October 17, 2019, Plaintiff

appeared at a parole hearing at which Officer Grant testified that Plaintiff was not in possession of

the assault rifle and that the driver of the car admitted responsibility for the weapons. The parole

violation charges against Plaintiff were dismissed and on October 20, 2017, he was released from

jail. (Id. at pg. 8). On November 2, 2017, the criminal charges against Plaintiff were dismissed.

(Id. at 8, 34).

On September 16, 2020, Plaintiff commenced this action against Grant; his partner, Police

Officer John Doe (“Officer Doe”); and Kings County District Attorney (ADA) John Doe (“ADA”

Doe”), who allegedly failed to dismiss the criminal charges which were pending against him.

(Compl. at 35). Plaintiff seeks only monetary damages.

STANDARD OF REVIEW

Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma

pauperis statute, 28 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is frivolous

or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see also

Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding both Section 1915 and Section 1915A

to be applicable to a prisoner proceeding in forma pauperis). To state a claim on which relief

2

may be granted, 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.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citations omitted).

It is axiomatic that pro se complaints are held to less stringent standards than pleadings

drafted by attorneys and the Court is required to read such a complaint liberally and interpret it as

raising the strongest arguments it suggests. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Sealed

Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191–93 (2d Cir. 2008). At the pleadings stage of

the proceeding, the Court must assume the truth of “all well-pleaded, nonconclusory factual

allegations” in the complaint. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d

Cir. 2010).

DISCUSSION

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. 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, 144 n. 3 (1979); Thomas v.

Roach, 165 F.3d 137, 142 (2d Cir. 1999). In order to state a § 1983 claim, a plaintiff must allege

two essential elements. First, the conduct challenged must have been “committed by a person

acting under color of state law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting

3

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from its

reach merely private conduct, no matter how discriminatory or wrongful.”) (internal quotation

marks and citation omitted). Second, “the conduct complained of must have deprived a person of

rights, privileges or immunities secured by the Constitution or laws of the United States.” Id.; see

also Moore v. Toulon, No. 18-CV-5276 (JMA)(ARL), 2019 WL 885932, at *2 (E.D.N.Y. Feb. 22,

2019).

Plaintiff alleges that ADA Doe failed to dismiss the criminal charges which were pending

against him. (Compl. at 35). To the extent Plaintiff seeks argue that the prosecutor violated his

constitutional rights by initiating or pursuing a meritless criminal action against him, the claim

fails to state a claim for relief. A prosecuting attorney who acts within the scope of his duties in

initiating and pursuing a criminal prosecution is immune from a civil suit for damages under §

1983. Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005); Brown v. County of Kings,

19-CV-6755 (RPK), 2020 WL 4431521, at *3 (E.D.N.Y. July 30, 2020); Chapman v. Nassau

County, No. 19-CV-4592 (BMC)(AKT), 2020 WL 1139905, at *2 (E.D.N.Y. Mar. 9, 2020).

Further, “a suit for money damages against a district attorney or his or her assistant district

attorneys, in their official capacities, is actually a suit against New York State, and is barred by

the Eleventh Amendment.” Sharp v. Morgenthau, No. 08-CV-5919 (PKC)(FM), 2010 WL

339767, at *4 (S.D.N.Y. Jan. 25, 2010); see also Ying Jing Gan v. City of New York, 996 F.2d

522, 535–36 (2d Cir. 1993) (reaffirming that the Eleventh Amendment bars official-capacity suits

based “on decisions whether or not, and on what charges, to prosecute”); Campos v. Zuntag, No.

4

15 CV 2862 (CBA)(JO), 2015 WL 6972062, at *4 (E.D.N.Y. Nov. 9, 2015). Accordingly,

Plaintiff’s claim against ADA Doe is not plausible and is dismissed pursuant to 28 U.S.C. §

1915A(b). However, Plaintiff’s complaint against the two officers will be allowed to proceed.

CONCLUSION

For the reasons set forth above, Plaintiff’s claim against ADA Doe is dismissed. See 28

U.S.C. § 1915A. No summons shall issue as to this defendant.

The Clerk of Court shall issue a summons with respect to Officer Grant. The United

States Marshal Service shall serve the summons and a copy of the complaint upon Officer Grant,

Shield No. 12175, who at the time of the incident was an officer at the 75th Precinct, located at

1000 Sutter Avenue, Brooklyn, NY 11208, without prepayment of fees.

Pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per curiam), the Court

requests that the New York City Law Department ascertain the full name of Grant’s partner,

Officer Doe, who is alleged to have been involved in the October 1, 2017, arrest and detention of

Plaintiff. The Law Department is to provide both the full name of the officer and the address

where this individual can currently be served; the government need not undertake to defend or

indemnify this individual at this juncture. The Law Department is further requested to provide

the information specified above to the Court within forty-five (45) days from the date of this

Order. Once he has been identified, Plaintiff’s complaint shall be deemed amended to substitute

this individual for Officer Doe as a defendant, a summons shall issue, and the Court shall direct

service on this defendant.

5

The Clerk of Court is respectfully directed to mail copy of this Order to the Law

Department’s Special Federal Litigation Division and to Plaintiff and to note the mailings on

the docket sheet. This action is referred to Magistrate Judge Taryn A. Merkl for pretrial

supervision. 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 an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Dated: Brooklyn, New York Roslynn R. Mauskopf

June 22, 2021

____________________________________

ROSLYNN R. MAUSKOPF

United States District Judge

6