# Sheppard v. Leuze

> District Court, E.D. New York · June 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10308084

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308084

## How later opinions describe it (automated extraction)

- affirming denial of leave to amend where the plaintiff declined an opportunity to amend at the pre-motion conference
- explaining that a defendant “faces a formidable hurdle” in raising qualified immunity at the motion to dismiss stage because entitlement to immunity must be established based only on “facts appearing on the face of the complaint” (citations omitted)
- explaining that although district courts “should frequently provide leave to amend before dismissing a pro se complaint,” leave to amend “is not necessary when it would be futile”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

JANNIL CHRISTON-SCORPIO SHEPPARD,

Plaintiff,

-against- MEMORANDUM AND ORDER

21-CV-2075(KAM)(TAM)
LT. LEUZE; P.O. SOSE; P.O. CARLISLE;
P.O. GLORIMAR DURAN,

Defendants.

--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Jannil Christon-Scorpio Sheppard, proceeding
pro se, brings this action against four New York City police
officers pursuant to 42 U.S.C. §§ 1981 and 1983. (ECF No. 2
(“Compl.”) at 2.) Defendants move to dismiss the complaint for
failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 29.) For the reasons set forth
below, Defendants’ motion is GRANTED IN PART and DENIED IN PART.
Background
On a motion to dismiss, the court accepts the truth of
all well-pleaded factual allegations and draws all reasonable
inferences in favor of the plaintiff. Melendez v. City of New
York, 16 F.4th 992, 1010 (2d Cir. 2021). The court may also
consider documents incorporated by reference into the complaint
and matters of proper judicial notice and public record. Id. at
996. Moreover, “[a] district court deciding a motion to dismiss
may consider factual allegations made by a pro se party in his
papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122
n.1 (2d Cir. 2013).
I. Factual Background
392 Adelphi Street is a three-family townhouse in

Brooklyn, New York. (Compl. at 5, 20, 22.)1 Plaintiff alleges
that, as a family home passed on through his grandmother, he had
been welcome at 392 Adelphi Street “for the entire 34 years of my
life.” (Id. at 8; ECF No. 27 (“Pl.’s Opp’n”) at 9.) Numerous
family members lived at 392 Adelphi Street over the course of more
than four decades, including Plaintiff and his grandmother,
father, and aunt. (Pl.’s Opp’n at 8-9.) For two years prior to
the events at issue in this case, Plaintiff lived in a first-floor
apartment at 392 Adelphi Street with his father. (Compl. at 8;
Pl.’s Opp’n at 6.) Plaintiff had a key to the apartment, received
mail and stored his belongings there, and had a driver’s license

listing 392 Adelphi Street as his address. (Compl. at 6, 8, 11;
Pl.’s Opp’n at 10, 20.)
On March 7, 2020, Plaintiff voluntarily admitted himself
to an alcohol treatment center. (Compl. at 5.) When he was
released on March 21, 2020, Plaintiff attempted to return to the

1 All pin citations refer to the page number assigned by the court’s CM/ECF
system.
apartment that he allegedly shared with his father at 392 Adelphi
Street. (Id.) Upon arrival, Plaintiff was informed by his uncle,
Barry Sheppard, that his father had been hospitalized with COVID-
19 and that the house required cleaning and sanitization. (Id.)
As a result, Plaintiff temporarily stayed with another relative.
(Id.)

On April 14, 2020, Plaintiff’s father passed away. (Id.)
On April 19, 2020, Plaintiff returned to 392 Adelphi St. but
discovered that the house had been “ransacked” and “many items
[had been] cleared away and put in garbage bags.” (Id. at 6.)
Plaintiff and his uncle got into an altercation about who owned
the house. (Id. at 8.) The uncle claimed the house was now his
and asked Plaintiff to leave; Plaintiff refused. (Id.) The uncle
allegedly raised a walking stick “in a threatening way” against
Plaintiff, at which point Plaintiff called the police. (Id.)
Defendants Leuze and Sose arrived at the scene. (Id. at
9.) Plaintiff presented his New York State driver’s license, which

listed 392 Adelphi St. as his address. (Id. at 8.) Plaintiff
also allegedly offered to search the house for mail that would
corroborate his residency, but the officers declined his request.
(Id. at 8-9.) Plaintiff claims that his uncle placed the officers
on the phone with Plaintiff’s half-cousin, Tarik Sheppard, who is
also a police officer. (Id.) Following the conversation with
Tarik Sheppard, Leuze told Plaintiff to leave the property. (Id.
at 9.) Plaintiff complied. (Id.)
Later that day, Plaintiff examined the deed to 392
Adelphi St. and discovered that it was owned by 392 ADL LLC. (Id.
at 10.) Plaintiff believed that the deed proved that his uncle
did not own the property, and called the police. (Id.) Officers

“Carlisle” and Duran arrived at the scene. (Id.) Plaintiff
claims that “Carlisle” and Duran entered 392 Adelphi St. without
him and had a phone conversation with his half-cousin, Tarik
Sheppard. (Id.) Following the conversation with Mr. Sheppard,
the officers told Plaintiff to leave the premises and threatened
to take Plaintiff to a hospital if he refused. (Id.)
Plaintiff initiated an illegal lockout proceeding with
the Housing Part of the Civil Court of the City of New York. (Id.
at 21-23.) See N.Y. Real Prop. Law § 713(10). The Housing Court
found that title to 392 Adelphi Street passed from Plaintiff’s
grandmother to his uncle, and then to 392 ADL LLC. (Compl. at

22.) As such, the Housing Court concluded that even if Plaintiff
was unlawfully ousted, he was not entitled to be restored to
possession because he would not be able to prevail in a subsequent
eviction proceeding. (Id. at 23.)
II. Procedural History
Plaintiff commenced this action on March 26, 2021 in the
United States District Court for the Southern District of New York,
which subsequently transferred the case to this court. (ECF No.
4.) Plaintiff brings claims pursuant to 42 U.S.C. §§ 1981 and
1983, asserting that his Fourth and Fourteenth Amendment rights
were violated. (Compl. at 2.)
On April 23, 2021, Magistrate Judge Reyes granted
Plaintiff’s application to proceed in forma pauperis and directed

the U.S. Marshals Service to serve the summons and complaint on
Defendants without prepayment of fees. (ECF No. 7.) The Marshals
Service subsequently served Defendants Leuze, Sose, and Duran.
(ECF Nos. 10-11, 13.) The Marshals were unable to serve Defendant
“Carlisle” because there was no one by that name at the 88th
Precinct. (ECF Nos. 12, 14.)
At a July 20, 2021 status conference before Magistrate
Judge Merkl, defense counsel indicated that Plaintiff intended to
sue Officer Carlin, rather than Officer “Carlisle.” (ECF No. 17
at 17.) Magistrate Judge Merkl directed Plaintiff to consult with
defense counsel regarding the identity of the officer and

specifically advised him that “if you can’t figure out who that
other officer is or how to serve that person, the [M]arshals aren’t
going to be able to give the person the complaint.” (Id. at 19.)
Plaintiff stated that he understood. (Id.) To date, Officer
Carlin has not been served.
On August 6, 2021, Defendants requested a pre-motion
conference for a motion to dismiss the complaint for failure to
state a claim. (ECF No. 18.) At the August 21, 2021 pre-motion
conference, the court granted Plaintiff leave to amend his
complaint and directed the parties to submit a briefing schedule
if Defendants intended to move to dismiss the amended complaint.
(8/18/2021 Minute Entry.) Subsequently, however, Plaintiff
informed Defendants that “he would not be amending his complaint.”

(ECF No. 24 at 1.) Accordingly, the parties proceeded to brief
Defendants’ motion to dismiss based on the original complaint,
which is now ripe for decision.
Legal Standard

To survive a motion to dismiss under Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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.” Id. Although
“detailed factual allegations” are not required, “[a] pleading
that offers labels or conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. (quotations and
citation omitted).
“A document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotations
and citations omitted). The court accordingly construes
Plaintiff’s submissions to “raise the strongest arguments that
they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Discussion

I. Section 1983
To state a claim under Section 1983, “a plaintiff must
allege two elements: (1) the violation of a right secured by the
Constitution and laws of the United States, and (2) the alleged
deprivation was committed by a person acting under color of state
law.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87-
88 (2d Cir. 2015) (quotations and citation omitted). Here,
Plaintiff’s Section 1983 claims are based on alleged violations of
the Fourth and Fourteenth Amendments by police officers. (Compl.
at 2.)
A. Fourth Amendment

Plaintiff claims that he was unreasonably seized when
Defendants directed him to leave the premises on April 19, 2020.
(Compl. at 9.) In support of this claim, Plaintiff provides his
driver’s license listing his address as 392 Adelphi Street and
alleges that he lived in the apartment at 392 Adelphi Street with
his father for two years prior to entering a treatment facility in
March 2020; that he had a key to the apartment, received mail, and
stored his belongings there; that he had been welcome at 392
Adelphi Street for his entire life; and that, along with several
other family members, he lived at 392 Adelphi Street on numerous
occasions since 1992. (Id. at 5-6; Pl.’s Opp’n at 6, 9, 20.)
Under these circumstances, the court finds that Plaintiff has
stated a plausible Fourth Amendment seizure claim based on the

officers’ directive to leave the premises.
A person is seized when an officer uses “physical force
or [a] show of authority” to “restrain[] the liberty of a citizen.”
Salmon v. Blesser, 802 F.3d 249, 252 (2d Cir. 2015) (quoting Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968)). “To explain when a sufficient
‘show of authority’ effects restraint, the Supreme Court has relied
on a totality-of-the-circumstances test, asking whether a
reasonable person would believe that he was ‘not free to leave.’”
Id. (quoting INS v. Delgado, 466 U.S. 210, 215 (1984)). As both
the Supreme Court and the Second Circuit have recognized, however,
“the ‘free to leave’ test may not be the best measure of a seizure

where,” as here, “a person has no desire to leave the location of
a challenged police encounter.” Id. at 253 (citing Florida v.
Bostick, 501 U.S. 429, 434-36 (1991)). In those circumstances,
the appropriate inquiry is “whether a reasonable person would feel
free to decline the officers’ requests or otherwise terminate the
encounter.” Id. (quoting Bostick, 501 U.S. at 436).
Applying these principles, the Second Circuit concluded
in Salmon that “an order to depart a public place that allows a
person to go anywhere else he wishes does not, without more, effect
a Fourth Amendment seizure.” Id. at 257 (emphasis added) (citing
Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994)). “[T]he
question of whether a seizure has occurred when police officers

merely instruct an individual to leave their home,” however,
“remains unresolved.” Grafton v. Fobelk, 2019 WL 6716611, at *2
(N.D. Ill. Dec. 10, 2019) (emphasis added; citation omitted); see
also, e.g., Youkhanna v. City of Sterling Heights, 934 F.3d 508,
523 (6th Cir. 2019) (adopting the Second Circuit’s decision in
Salmon “at least in circumstances where the person being asked to
leave is not privileged to remain in the space”).
“When it comes to the Fourth Amendment, the home is first
among equals.” Lange v. California, 141 S. Ct. 2011, 2018 (2021)
(citation omitted). Given that “the right of a man to retreat
into his own home” lies at the “very core” of the Fourth Amendment,

id. (citation omitted), the court concludes that – unlike a public
place – a plaintiff can plead a Fourth Amendment seizure when he
reasonably submits to an order to leave his home, even when the
officers do not use “physical force intentionally to restrain
plaintiff and control his movements.” Salmon, 802 F.3d at 257;
see also, e.g., Grafton, 2019 WL 6716611, at *2 (noting that “it
may be a seizure to be asked to leave one’s current residence”).
Having unsuccessfully attempted to prove to the officers that 392
Adelphi Street was his residence, Plaintiff has adequately pleaded
that a reasonable person in his position would not have felt “free
to decline the officers’ requests” to leave his home “or otherwise
terminate the encounter.” Salmon, 802 F.3d at 253 (quoting
Bostick, 501 U.S. at 436).

Defendants dispute that the apartment was Plaintiff’s
“home” for purposes of the Fourth Amendment and argue that
Plaintiff lacked any expectation of privacy in the apartment. (ECF
No. 30 (“Defs.’ Mem.”) at 15-17.) At this preliminary stage of
the litigation, and assuming the truth of Plaintiff’s allegations,
the court cannot agree. It is true that the state court found –
and the deed attached to the complaint reflects – that title to
392 Adelphi Street passed from Plaintiff’s grandmother, to
Plaintiff’s uncle Barry Shepard, to an entity called 392 ADL LLC.
(Compl. at 20, 22.) Similarly, Plaintiff acknowledges that he
himself never had a lease or otherwise paid rent to live at 392

Adelphi Street. (Id. at 22; Pl.’s Opp’n at 9.) Nevertheless,
there are numerous other bases on which Plaintiff’s expectation of
privacy may be grounded.
For example, under New York law, it is generally unlawful
to evict anyone without a court order “who has lawfully occupied
[a] dwelling unit for thirty consecutive days or longer.” N.Y.
Admin. Code § 26-521(a). In addition, even if Plaintiff did not
enjoy an expectation of privacy in his own right, “it has long
been recognized that a person may claim a legitimate expectation
of privacy in a dwelling other than his own.” Figueroa v. Mazza,
825 F.3d 89, 108 (2d Cir. 2016). In Minnesota v. Olson, for
example, the Supreme Court held that an “overnight guest” can enjoy
a legitimate expectation of privacy in his host’s home. 495 U.S.

91, 98 (1990). And in Figueroa, the Second Circuit concluded that
the plaintiff – regardless of whether he was an “overnight” guest
– enjoyed a legitimate expectation of privacy in his mother’s home,
and thus his claim for unlawful entry under Section 1983 could
survive summary judgment. 825 F.3d at 110-11.
As the Second Circuit explained, the “ultimate inquiry”
is “whether the host has so liberally shared his own privacy
interest with his guest that it shelters the guest against
unreasonable government intrusion.” Id. at 109. The Second
Circuit identified several factors relevant to this inquiry that
are present in this case, including the substantial time that

Plaintiff spent on the premises; the presence of a familial
connection between Plaintiff, his father, his uncle, and other
family members who allegedly resided at 392 Adelphi Street; and
Plaintiff’s possession of a key to and storage of possessions on
the premises. See id. Thus, regardless of whether Plaintiff’s
“host” is considered to be his father or 392 ADL LLC, the court
concludes that Plaintiff has pleaded sufficient facts to establish
a reasonable expectation of privacy. See, e.g., Santagata v. Diaz,
2020 WL 1536347, at *8-9 (E.D.N.Y. Mar. 30, 2020) (concluding, on
summary judgment, that the plaintiff had a reasonable expectation
of privacy in his grandmother’s home based on the presence of
several Figueroa factors).
Ultimately, Defendants’ bid for dismissal suffers from

a fatal flaw: the absence of any information regarding 392 Adelphi
Street’s current owner, 392 ADL LLC. Discovery may well reveal
that, at the time he was ordered to leave the premises, Plaintiff
was a “mere trespasser” with “no Fourth Amendment protection in
premises he occupie[d] wrongfully.” United States v. Sanchez, 635
F.2d 47, 64 (2d Cir. 1980). For example, it is possible that
Plaintiff’s uncle, Barry Shephard, stands behind 392 ADL LLC and
had the authority to revoke any consent for Plaintiff to remain in
the apartment. (See Defs.’ Mem. at 1 (stating that 392 Adelphi
Street was Plaintiff’s “uncle’s home”).) The only information now
before the court, however, is that the deed for 392 Adelphi Street

lists the same address for both Barry Shephard and 392 ADL LLC.
(Compl. at 20.) Without additional facts regarding 392 ADL LLC
and the legal status of the residence, the court cannot conclude
that Plaintiff was a mere “squatter” with no right to occupy the
premises at the time of his interactions with the police. See,
e.g., Gill v. Dawkins, 2020 WL 7042647, at *3-4 (E.D.N.Y. Nov. 30,
2020) (concluding, on summary judgment, that the plaintiff lacked
any reasonable expectation of privacy and thus could not succeed
on an unlawful entry claim under Section 1983); Wilson v. Sessoms-
Newton, 2017 WL 3575240, at *5-6 (E.D.N.Y. Aug. 17, 2017) (same).
Finally, the court notes that many cases involving an
order to leave a home “are decided on qualified immunity grounds.”
Grafton, 2019 WL 6716611, at *2; see, e.g., Wilson, 2017 WL

3575240, at *9-10. It appears exceedingly likely that Defendants
would be able to prevail on a qualified immunity defense in this
case. See, e.g., White v. City of Markham, 310 F.3d 989, 996-97
(7th Cir. 2002). Defendants do not raise qualified immunity at
this stage, however, and the court will not raise such a defense
for them. See also, e.g., Barnett v. Mt. Vernon Police Dep’t, 523
F. App’x 811, 813 (2d Cir. 2013) (explaining that a defendant
“faces a formidable hurdle” in raising qualified immunity at the
motion to dismiss stage because entitlement to immunity must be
established based only on “facts appearing on the face of the
complaint” (citations omitted)). In their motion, Defendants

argue only that Plaintiff lacked a reasonable expectation of
privacy and was not “seized” within the meaning of the Fourth
Amendment. (Defs.’ Mem. at 15-19.) Having rejected those
arguments, the court denies Defendant’s motion to dismiss the
Fourth Amendment claims.
B. Fourteenth Amendment
Plaintiff also claims that Defendants violated his
Fourteenth Amendment right to equal protection. (Compl. at 2, 9.)
“The Equal Protection Clause requires that the government treat
all similarly situated people alike.” Harlen Assocs. v. Inc.
Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). A plaintiff

must show “both that he was treated differently than other persons
who were similarly situated and that such differential treatment
was either without rational basis (a ‘class of one’ claim) or was
motivated by an intent to discriminate on an impermissible basis
(a selective enforcement claim).” Casciani v. Nesbitt, 392 F.
App’x 887, 888 (2d Cir. 2010). “A plaintiff asserting a selective
enforcement or class-of-one claim must present evidence of
similarly situated comparators.” Gambino v. Village of Freeport,
2022 WL 138065, at *11 (E.D.N.Y. Jan. 14, 2022) (collecting cases).
Plaintiff has failed to plead an equal protection claim
under either theory. For example, Plaintiff claims that his equal

protection rights were violated because the officers believed the
representations made by Plaintiff’s uncles and ordered Plaintiff
to leave the house. (Compl. at 9.) Plaintiff also claims that
one of the officers violated his equal protection rights by
“disregarding” his New York driver’s license, which lists an
address of 392 Adelphi Street, and by refusing to allow him to
show that he received mail at 392 Adelphi Street. (Id.) These
allegations do not give rise to a plausible equal protection claim
because “Plaintiff makes no effort under either theory to identify
sufficiently similar comparators who were treated more favorably.”
Lewis v. City of Newburgh, 2021 WL 6052135, at *5 (S.D.N.Y. Dec.
20, 2021). Similarly, Plaintiff “does not include any factual
allegations suggesting that his [allegedly] differential treatment

by Defendants was the result of ‘impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to
injure.’” Poole v. Hawkins, 2021 WL 695119, at *9 (E.D.N.Y. Feb.
23, 2021) (quoting Bush v. City of Utica, 558 F. App’x 131, 134
(2d Cir. 2014)). Accordingly, Plaintiff’s equal protection claims
are dismissed. The court declines to grant leave to amend, both
because doing so would be futile in light of the absence of any
indication that similarly situated persons were treated more
favorably than Plaintiff or that Plaintiff’s treatment was based
on impermissible considerations, and because Plaintiff refused a

previous opportunity to amend his complaint. See, e.g., Reed v.
Friedman Mgmt. Corp., 541 F. App’x 40, 41 (2d Cir. 2013)
(explaining that although district courts “should frequently
provide leave to amend before dismissing a pro se complaint,” leave
to amend “is not necessary when it would be futile”); Rosner v.
Star Gas Partners, L.P., 344 F. App’x 642, 645 (2d Cir. 2009)
(affirming denial of leave to amend where the plaintiff declined
an opportunity to amend at the pre-motion conference).
II. Section 1981
To state a claim under Section 1981, the complaint must
allege that (1) Plaintiff is a member of a racial minority; (2)
Defendants intended to discriminate on the basis of race; and (3)

Defendants’ discrimination concerned one of the statute’s
enumerated activities. Bibliotechnical Athenaeum v. Am. Univ. of
Beirut, 2022 WL 710896, at *3 (2d Cir. Mar. 10, 2022) (citing Brown
v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)). The court
agrees with Defendants that the complaint fails to state a claim
under Section 1981.
As a threshold matter, Section 1981 “does not provide a
separate private right of action against state actors.” Duplan v.
City of New York, 888 F.3d 612, 621 (2d Cir. 2018). Because the
police officers that Plaintiff sues are all state actors, the
complaint does not state a viable claim under Section 1981. See,

e.g., Rodriguez v. City of New York, 2022 WL 768159, at *19
(E.D.N.Y. Mar. 14, 2022). Even if the complaint did not suffer
from this fundamental defect, however, Plaintiff has failed to
adequately plead the elements of a Section 1981 claim.
First, the complaint fails to allege that Plaintiff is
a member of a racial minority, as required to state a Section 1981
claim. See, e.g., Gaddy v. Ports Am., 2015 WL 3929693, at *6
(S.D.N.Y. June 15, 2015). Second, a plaintiff alleging racial
discrimination “must do more than recite conclusory assertions.”
Henry v. County of Nassau, 6 F.4th 324, 335 (2d Cir. 2021)
(citation omitted). Here, the complaint offers nothing more than
a conclusory assertion that Defendants’ actions were motivated by
“racial and at the very least class bias.” (Compl. at 10.) For

example, Plaintiff alleges that an Asian-American police officer
stated, “If my father has an apartment on 5th Ave. and he dies, do
you think I can just show up[?]” (Id.) This statement does not
give rise to a plausible claim that Plaintiff was “subjected to
intentional discrimination solely because of [his] ancestry or
ethnic characteristics.” St. Francis College v. Al-Khazraji, 481
U.S. 604, 613 (1987). In short, Plaintiff’s “‘naked allegation’
of racial discrimination on the part of [Defendants] is too
conclusory to survive a motion to dismiss.” Andrews v.
Fremantlemedia, N.A., Inc., 613 F. App’x 67, 69 (2d Cir. 2015)
(quoting Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988)).

Finally, the complaint fails to allege discrimination
concerning one of Section 1981’s enumerated activities. Plaintiff
claims that Defendants interfered with his right to “give evidence”
under Section 1981 because they allegedly refused his request to
provide additional evidence of his residence at 392 Adelphi Street.
(Pl.’s Opp’n at 5.) The right to “give evidence,” however, “is
concerned with citizens’ ability to participate in legal
proceedings.” Frierson-Harris v. Hough, 2006 WL 298658, at *7
(S.D.N.Y. Feb. 7, 2006). Accordingly, because Plaintiff sues state
actors and has failed to adequately plead any of the three elements
of a Section 1981 claim, dismissal is warranted. As with the equal
protection claim, the court declines to grant leave to amend
because doing so would be futile in light of Section 1981’s lack

of applicability to state actors and because Plaintiff declined a
previous opportunity to amend. See, e.g., Reed, 541 F. App’x at
41; Rosner, 344 F. App’x at 645.
III. Failure to Serve Defendant Carlin
As a last resort, Defendant Carlin – named in the
complaint as Defendant “Carlisle” – argues that he should be
dismissed because he has not been properly served. (Defs.’ Mem.
at 20-21.) “If a defendant is not served within 90 days after the
complaint is filed, the court . . . must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time.” Fed. R. Civ. P. 4(m). Where “the

plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Id. In addition,
“district courts have discretion to grant extensions even in the
absence of good cause.” Zapata v. City of New York, 502 F.3d 192,
196 (2d Cir. 2007).
As discussed above, Defendants informed Plaintiff of
their belief during a July 20, 2021 status conference that
Plaintiff intended to serve Officer Carlin rather than Officer
“Carlisle.” (ECF No. 17 at 17.) Plaintiff was not prepared to
accept Defendants’ explanation during the status conference
because he was “pretty confident that [he] spelled [the] name
correctly” and because the Marshals Service’s explanation – that
there was no Officer Carlisle at the 88th Precinct – “didn’t say

that . . . no Officer Carlisle existed.” (Id. at 18-19.)
Despite Magistrate Judge Merkl’s directive to confer
with Defendants, and despite her warning that the Marshals would
be unable to effectuate service “if you can’t figure out who the
other officer is or how to serve that person” (id. at 19),
Plaintiff’s opposition continues to argue that the explanation on
the affidavit of service “was rather vague.” (Pl.’s Opp’n at 8.)
Nevertheless, in light of his pro se status, the court will afford
Plaintiff “one last chance to comply with Federal Rule of Civil
Procedure 4.” Jackman v. Davidovits, 2021 WL 5628683, at *1
(E.D.N.Y. June 30, 2021); see also, e.g., Griggs v. Schmauss, 2020

WL 8988678, at *1 (W.D.N.Y. May 26, 2020) (extending deadline for
service “[i]n light of Plaintiff’s pro se status and the apparent
difficulty the USMS has had in serving Defendant”).
By July 6, 2022, Defendants shall service Plaintiff and
file on the docket the full name and service address of the Officer
Carlin identified during the July 20, 2021 status conference.
Defendants shall also explain in their submission to Plaintiff and
the court their basis for believing that Officer Carlin is the
defendant that Plaintiff intended to name in the complaint. By
July 20, 2022, Plaintiff shall file a letter with the court stating
whether he agrees with Defendants that Officer Carlin is the proper
defendant, rather than Officer “Carlisle.” If Plaintiff agrees in
his letter that Officer Carlin is the proper defendant, the court

will direct the Marshals to serve Officer Carlin with the summons
and complaint and will deem the complaint amended to substitute
the name Officer Carlin for the name Officer “Carlisle.” If
Plaintiff does not agree that Officer Carlin is the proper
defendant, and otherwise fails to identify the proper defendant in
his letter, Officer “Carlisle” will be dismissed under Rule 4(m).
Conclusion
For the reasons set forth above, Defendants’ motion to
dismiss is DENIED as to the Fourth Amendment claims and GRANTED as
to the Fourteenth Amendment and Section 1981 claims. By July 6,
2022, Defendants shall serve Plaintiff and file on the docket the

full name and service address of the Officer Carlin identified
during the July 21, 2021 status conference, and shall explain their
basis for believing that Officer Carlin is the defendant that
Plaintiff intended to name in the complaint. By July 22, 2022,
Plaintiff shall file a letter with the court stating whether he
agrees with Defendants that Officer Carlin is the proper defendant,
as opposed to Officer “Carlisle.” If Plaintiff does not agree
that Officer Carlin is the proper defendant, and fails to otherwise
identify the proper defendant, Officer “Carlisle” will be
dismissed under Rule 4(m).
Defendants are directed to serve a copy of this
Memorandum and Order on Plaintiff and note service on the docket.
SO ORDERED.

/s/ Kiyo A. Matsumoto_______
Hon. Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
Dated: Brooklyn, New York
June 27, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308084. Public record. Not legal advice.