Annunziata v. Fanwick S.C.P.D.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FRANK ANNUNZIATA,

Plaintiff,

ORDER

-against- 22-CV-2580(JS)(SIL)

ANTHONY FANWICK, Suffolk County

Police Officer Badge # 6486;

SUFFOLK COUNTY POLICE DEPARTMENT,

SUFFOLK COUNTY; ROBERT WARING,

Suffolk County Police Chief;

JOHN DOE #1; and JOHN DOE #2,

Defendants.

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APPEARANCES

For Plaintiff: Frank Annunziata, Pro Se

21-A-0838

Marcy Correctional Facility

9000 Old River Road

Box 3600

Marcy, New York 13403-3600

For Defendants: No Appearances.

SEYBERT, District Judge:

Before the Court is the application of pro se plaintiff

Frank Azzunziata (“Plaintiff”), currently incarcerated at the

Marcy Correctional Facility, to proceed in forma pauperis (“IFP”)

in support of his civil rights Complaint filed on May 5, 2022 and

brought pursuant to 42 U.S.C. § 1983 (“Section 1983”) (See Compl.,

ECF No. 1.; IFP Application, ECF No. 2.) On June 21, 2022,

Plaintiff filed an Amended Complaint, also pursuant to Section

1983, against Suffolk County, Suffolk County Police Chief Robert

Waring (“Chief Waring”), Suffolk County Police Officer Anthony

Fanwick (“P.O. Fanwick”), and two unnamed Suffolk County police

officers (“John Doe #1” and “John Doe #2”, collectively, the “John

Doe Defendants”). (See Am. Compl., ECF No. 6.) Upon review, the

Court finds that Plaintiff is qualified by his financial status to

proceed IFP. Accordingly, the application to proceed IFP is

GRANTED. However, for the reasons that follow, Plaintiff has not

alleged a plausible claim for relief against Suffolk County and

Chief Waring. Therefore, as set forth below, Plaintiff’s Section

1983 claims against Suffolk County and Chief Waring are DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b). Plaintiff’s remaining claims against P.O. Fanwick and

the John Doe Defendants shall proceed and the Court ORDERS service

of the Summonses and Amended Complaint forthwith.

BACKGROUND1

Plaintiff’s sparse Amended Complaint alleges that, on or

about June 23, 2019, he was sleeping in his vehicle when P.O.

Fanwick and the John Doe Defendants approached, pulled him out of

the vehicle, and threw him on the ground. (Am. Compl. ¶ II, at 3-

4.) Plaintiff alleges that, “while on the ground John Doe #1 and

John Doe #2 was kneeling on my head with my face being grinded on

1 Excerpts from the Amended Complaint are reproduced here exactly

as they appear in the original. Errors in spelling, punctuation,

and grammar have not been corrected or noted.

the black top.” (Id. at 4.) According to the Amended Complaint,

Plaintiff screamed that he “could not breath” and P.O. Fanwick

“jumped knee first onto my back breaking ribs and sending it

through my right lung causing it to collapse.” (Id.) Plaintiff

alleges that he was taken to Long Island Community Hospital where

he was admitted and treated for broken ribs, a collapsed right

lung, and abrasions on his face and arms. (See id.; see also id.

¶ II.A.) For relief, Plaintiff seeks to recover a monetary award

in an “amount to be determined at a future date.” (Id. ¶ III.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

The Court finds that Plaintiff is qualified by his

financial status to commence this action without prepayment of the

filing fees. See 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s

IFP Application (ECF No. 2) is GRANTED.

II. Legal Standards

A. Consideration of the Complaint Under 28 U.S.C. § 1915

Section 1915 requires a district court to dismiss an in

forma pauperis complaint or amended 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, among other things, 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) (citation omitted). The

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

a determination. See 28 U.S.C. § 1915A; Avant v. Miranda, No. 21-

CV-0974, 2021 WL 1979077, at *2 (E.D.N.Y. May 18, 2021).

Courts are obligated to construe the pleadings of a pro

se plaintiff liberally and to interpret them to raise the

“strongest [claims] that they suggest.” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation

marks and citations omitted) (emphasis in original). “But the

‘special solicitude’ in pro se cases[] has its limits –- to state

a claim, pro se pleadings still must comply with Rule 8 of the

Federal Rules of Civil Procedure, which requires a complaint to

make a short and plain statement showing that the pleader is

entitled to relief.” Wynn v. Regus Mgmt. Grp. LLC, No. 21-CV-

3503, 2021 WL 2018967, at *1 (S.D.N.Y. May 17, 2021) (quoting

Triestman, 470 F.3d at 475).

B. Section 1983

Section 1983 provides that:

Every 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.” Rodriguez v.

Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2

(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation

omitted).

III. Application of 28 U.S.C. § 1915

A. Claims Against Suffolk County

It is well-established that a municipality, like Suffolk

County, cannot be held liable under Section 1983 on a respondeat

superior theory. See Monell v. Dep’t of Soc. Servs. of N.Y. City,

436 U.S. 658, 691 (1978); Agosto v. N.Y.C. Dep’t of Educ., 982

F.3d 86, 98 (2d Cir. 2020) (“Monell expressly prohibits respondeat

superior liability for municipalities” (citations omitted)).

Rather, to state a claim against a municipality under Section 1983,

“the plaintiff is required to show that the challenged acts were

performed pursuant to a municipal policy or custom.” Tafolla v.

County of Suffolk, No. 17-CV-4897, 2021 WL 3675042, at *10

(E.D.N.Y. Aug. 19, 2021) (Seybert, J.) (quoting Littlejohn v. City

of N.Y., 795 F.3d 297, 314 (2d Cir. 2015)). 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; (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; (3) a practice so persistent and

widespread as to practically have the force of

law or that was so manifest as to imply the

constructive acquiescence of senior

policymaking officials; or (4) that a

policymaking official exhibited deliberate

indifference to constitutional deprivations

caused by subordinates.

Avant v. Miranda, No. 21-CV-0974, 2021 WL 1979077, at *3 (E.D.N.Y.

May 18, 2021) (Seybert, J.) (cleaned up).

Here, as is readily apparent when liberally construing

the bare-boned Amended Complaint, there are no factual allegations

that a municipal policy or custom existed which caused the alleged

constitutional deprivation. (See Am. Compl., in toto.) Thus,

Plaintiff has not alleged a plausible Section 1983 claim against

Suffolk County. Therefore, as the Defendant Suffolk County,

pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A(b), the Amended

Complaint is DISMISSED WITHOUT PREJUDICE.

B. Claims Against Chief Waring

To state a claim for relief under Section 1983 against

an individual defendant, a plaintiff must allege the personal

involvement of the defendant in the alleged constitutional

deprivation. Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010). In

Iqbal, the Supreme Court held that “[b]ecause vicarious liability

is inapplicable to . . . [Section] 1983 suits, a plaintiff must

plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.”

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A complaint based

upon a violation under Section 1983 that does not allege the

personal involvement of a defendant fails as a matter of law and

should be dismissed. Johnson v. Barney, 360 F. App’x 199, 201 (2d

Cir. 2010).

Here, although Plaintiff names Chief Waring as a

Defendant in the caption of his Amended Complaint, Plaintiff

includes no factual allegations of conduct or inaction

attributable to Chief Waring. (See Am. Compl., in toto.) Indeed,

Chief Waring is not mentioned at all in the body of the Amended

Complaint. (See id.) To the extent Plaintiff seeks to impose

Section 1983 liability on Chief Waring given the supervisory

position he holds, the Second Circuit has made clear that there is

“no special test for supervisory liability.” Tangreti v. Bachmann,

983 F.3d 609, 616 (2d Cir. 2020). Rather, in order “[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.” Id. at 620; see also Holloway v.

Toulon, No. 21-CV-5011(JS)(JMW), 2022 WL 836924, at *5 (E.D.N.Y.

Mar. 21, 2022) (dismissing Section 1983 claims against a supervisor

in the absence of any factual allegations against him).

Accordingly, in the absence of any allegations against

Chief Waring in the Amended Complaint, Plaintiff’s Section 1983

claim against Chief Waring is DISMISSED WITHOUT PREJUDICE pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).

C. Claims Against P.O. Fanwick and the John Doe Defendants

Though the allegations against P.O. Fanwick and the John

Doe Defendants are thin, the Court declines to sua sponte dismiss

Plaintiff’s Section 1983 claims against those Defendants at this

early stage in this proceeding. Accordingly, service of the

Summonses and Amended Complaint by the United States Marshals

Service (“USMS”) upon P.O. Fanwick and the John Doe Defendants is

warranted. However, without more information about John Doe #1

and John Doe #2, the USMS will not be able to effect service of

the Summonses and the Amended Complaint on the John Doe Defendants.

More specifically at to the John Doe Defendants: Since

the Second Circuit has held that district courts must provide pro

se litigants with reasonable assistance in investigating the

identity of such “John Doe” defendants, see Valentin v. Dinkins,

121 F.3d 72, 75–76 (2d Cir. 1997), the Clerk of the Court is

directed to serve a copy of the Amended Complaint, together with

this Order, upon the Suffolk County Attorney. Upon said service,

the Suffolk County Attorney is requested to attempt to ascertain

the full names of the two unidentified John Doe Defendants

described in the Amended Complaint as allegedly having interacted

with Plaintiff on June 23, 2019 at approximately 4:30 p.m. in or

around 700 Patchogue-Yaphank Road in Medford. Thereafter, and

within thirty (30) days of the date that this Order is served upon

the Suffolk County Attorney, the Suffolk County Attorney shall

provide the Court and Plaintiff with the names of and address(es)

where the John Doe Defendants can be served.

Further, once the information regarding the John Doe

Defendants is provided to the Court by the Suffolk County Attorney:

Plaintiff’s Amended Complaint shall be deemed amended to reflect

the full names of these Defendants; a Summons shall be issued as

to each John Doe Defendant; and the USMS are to serve each of

them.2 The Suffolk County Attorney need not undertake to defend

or indemnify these individuals at this juncture. This Order merely

provides a means by which Plaintiff may properly name and serve

the John Doe Defendants as instructed by the Second Circuit in

Valentin.

2 The USMS may wait to serve P.O. Fanwick until after the Suffolk

County Attorney reports back to the Court regarding the names of

and address(es) where the John Doe Defendants can be served.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

(A) Plaintiff’s IFP Application (ECF No. 2) is GRANTED;

(B) Plaintiff’s Section 1983 claims against Suffolk County

and Chief Waring are DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and

1915A(b)(1);

(C) Plaintiff’s remaining claims against P.O. Fanwick, John

Doe #1, and John Doe #2 shall proceed and the Court

ORDERS service of the Summonses and Complaint upon these

Defendants by the USMS;

IT IS FURTHER ORDERED that the Clerk of the Court shall:

(D) Issue Summonses and forward such Summonses and the

Amended Complaint, together with this Order, to the USMS

for service;

(E) Serve a copy of the Amended Complaint, together with

this Order, upon the Suffolk County Attorney; and

(F) Mail a copy of this Order to the Plaintiff at his

address of record and include the notation “Legal Mail”

on the envelope; and

IT IS FURTHER ORDERED that the Suffolk County Attorney:

(G) Shall attempt to ascertain the full names of the

unidentified John Doe Defendants who are alleged to have

interacted with Plaintiff on June 23, 2019 at

approximately 4:30 p.m. in or around 700 Patchogue-

Yaphank Road in Medford, New York, as is described in

the Amended Complaint; and

(H) within thirty (30) days of the date that this Order is

served upon the Suffolk County Attorney, he shall

provide the Court and Plaintiff with the names of and

address(es) where the John Doe Defendants can be served.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), the Court certifies that any appeal from this Order

would not be in good faith; therefore, IFP 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: July _12_, 2022

Central Islip, New York