Constantino v. New York City Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KERRY R. CONSTANTINO,

MEMORANDUM AND ORDER

Plaintiff, 22-CV-2335(KAM)

-against-

NEW YORK CITY POLICE DEPARTMENT;

SERGEANT BARBAH,

Defendants.

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KERRY R. CONSTANTINO,

Plaintiff, 22-CV-3175(KAM)

-against-

NEW YORK CITY POLICE DEPARTMENT,

SERGEANT BARBAH, SERGEANT JOHN DOE,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff, Kerry R. Constantino, proceeding pro se,

commenced these actions on May 2, 2022 (No. 22-cv-2335) and on May

25, 2022 (No. 22-cv-3175), alleging a violation of the Fourteenth

Amendment’s Due Process Clause based on an encounter with police

during an August 26, 2021 incident outside Plaintiff’s home. (See

No. 22-cv-03175, ECF No. 1 at 5-6; See No. 22-cv-2335, ECF No. 1

at 4-5.1) In the first action (No. 22-cv-2335), Plaintiff named

the New York Police Department (“NYPD”) and a Sergeant Barbah as

Defendants. In the second action (No. 22-cv-3175), Plaintiff again

named the NYPD and Sergeant Barbah as Defendants, and added a

Sergeant John Doe as an additional Defendant. Plaintiff moved to

proceed in forma pauperis in both actions, and also made a motion

to appoint counsel in No. 22-cv-2335.

For the reasons set forth below, the Court grants

Plaintiff’s requests to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a). Further, the two actions are hereby

consolidated, and Plaintiff’s Complaints are dismissed for failure

to state a claim upon which relief may granted. See 28 U.S.C. §

1915(e)(2)(B). Plaintiff is, however, granted leave to file an

amended complaint in the to-be-consolidated case bearing the

lower-case number, No. 22-cv-2335, within thirty days of the date

that this Memorandum and Order is entered on the docket.

BACKGROUND

Plaintiff’s claim arises out of an alleged incident on

August 26, 2021, when New York City Police Department (“NYPD”)

officers allegedly took Plaintiff’s “bike” (or “scooter”) off

her property, specifically from her driveway. (No. 22-cv-2335,

ECF No. 1 at 4-5; No. 22-cv-3175, ECF No. 1 at 5-6.) Plaintiff

1 All pagination pin citations refer to the page number assigned by the Court’s

CM/ECF system.

asserts that “the police said the Mayor said the bikes are

illegal and were taking it off my property.” (No. 22-cv-2335,

ECF No. 1 at 4). Plaintiff also alleges that the police “made

me unchain my bike and took it from my yard.” (Id. at 5.)

Plaintiff seeks monetary damages of $75,000. (Id. at 6; No. 22-

cv-3175, ECF No. 1 at 6.)

STANDARD OF REVIEW

Under 28 U.S.C. § 1915(e)(2)(B), a court must dismiss

an in forma pauperis action if it determines that the action

“(i) is frivolous or malicious; (ii) fails to state a claim

upon which relief may be granted; or (iii) seeks monetary

relief from a defendant who is immune from such relief.” The

submissions of a pro se plaintiff are “held to less stringent

standards” than those drafted by attorneys, Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal

quotation marks and citation omitted), and “construed

liberally and interpreted to raise the strongest arguments

that they suggest.” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (per curiam) (citation and

internal quotation marks omitted). “This is particularly so

when the pro se plaintiff alleges that her civil rights have

been violated.” Sealed Plaintiff v. Sealed Defendant, 537

F.3d 185, 191 (2d Cir. 2008).

Even so, to survive a motion to dismiss, a complaint

must plead enough facts, “accepted as true, to state a claim

to relief that is plausible on its face.” Cohen v. Rosicki,

Rosicki & Assocs., P.C., 897 F.3d 75, 80 (2d Cir. 2018)

(citation and internal quotation marks omitted). “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). Detailed factual

allegations are not required, but a pleading that tenders

“naked assertion[s] devoid of further factual enhancement” or

“a formulaic recitation of the elements of a cause of action

will not do.” Id. (citations and internal quotation marks

omitted).

DISCUSSION

I. Consolidation

A court may consolidate multiple cases pursuant to

Federal Rule of Civil Procedure 42(a) where they “involve a

common question of law or fact.” The trial court has “broad

discretion to determine whether consolidation is appropriate.”

Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990);

see also Stone v. Agnico-Eagle Mines Ltd., 280 F.R.D. 142, 143

(S.D.N.Y. 2012), and may do so sua sponte. See Devlin v.

Transp. Commc'ns Int'l Union, 175 F.3d 121, 130 (2d Cir. 1999).

Here, the two Complaints are remarkably similar except

that the second action names an additional defendant, Sergeant

John Doe. Both Complaints involve the same, single incident

from August 26, 2021, whereby Defendants allegedly took

Plaintiff’s bike (or “scooter”) off of her property at 69 Broad

Street. (No. 22-cv-2335, ECF No. 1 at 4-5; No. 22-cv-3175, ECF

No. 1 at 5-6.) The two actions therefore clearly involve common

— effectively, identical — questions of law and fact and

considerations of judicial economy thus favor consolidation.

See Devlin, 175 F.3d at 130 (noting that Rule 42(a) should be

prudently employed as a “valuable and important tool of judicial

administration” and should be invoked to “expedite trial and

eliminate unnecessary repetition and confusion”) (internal

quotations and citations omitted). Based upon the foregoing,

the Court consolidates these actions pursuant to Fed. R. Civ. P.

42(a). As the case first-in-time, Docket No. 22-cv-2335 shall

be referred to and treated as the “lead” case, and all

subsequent orders of this Court and papers that are submitted by

the parties shall be filed in that action.

II. Defendant NYPD

As an initial matter, the NYPD cannot be joined as a

party to this suit because it is an agency of the City of New York.

N.Y.C. Charter § 396 (“All actions and proceedings for the recovery

of penalties for the violation of any law shall be brought in the

name of the city of New York and not in that of any agency, except

where otherwise provided by law.”); see Jenkins v. City of New

York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (“The district court

correctly noted that the NYPD is a non-suable agency of the City.”)

(citation omitted). Accordingly, the Court dismisses Plaintiff’s

claims against the NYPD.

III. Section 1983 Claim

Section 1983 provides, in relevant part, 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); see Cornejo v.

Bell, 592 F.3d 121, 127 (2d Cir. 2010).

A colorable § 1983 claim requires two elements: (1)

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) (citation omitted); and (2) 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. (citation omitted). Here, Plaintiff

fails to state a viable § 1983 claim against remaining

Defendants Sergeant Barbah and Sergeant John Doe. Although

Plaintiff’s factual allegations likely establish that both

defendants were acting under color of state law, Jocks v.

Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (“We have no doubt

that when an officer identifies himself as a police officer . .

. he acts under color of law.”), Plaintiff fails to establish

that their actions deprived her of a constitutional right for

the following reasons.

The Court liberally construes Plaintiff’s allegations

as claiming a deprivation of property without procedural due

process, in violation of the Fourteenth Amendment. “In alleging

a violation of his procedural due process rights, a plaintiff

must plead facts sufficient to give rise to a claim that he was

deprived of his property without ‘constitutionally adequate pre-

or post-deprivation process.’ ” Ahlers v. Rabinowitz, 684 F.3d

53, 62 (2d Cir. 2012) (internal quotations and citation

omitted).

Deprivation of property by a state actor, whether done

intentionally or negligently, will not support a due process

claim redressable under § 1983 if “adequate state post-

deprivation remedies are available.” Davis v. New York, 311

Fed. Appx. 397, 400 (2d Cir. 2009) (summary order) (quoting

Hudson v. Palmer, 468 U.S. 517, 533 (1984) (dismissing

deprivation of property claim under § 1983 because other

postdeprivation state remedies were available)). This is

because when deprivation of property is “occasioned by a random,

unauthorized act by a state employee, rather than by an

established state procedure, the state cannot predict when the

loss will occur and thus it would be impossible to provide a

hearing before the state employee acted.” Fredericks v. City of

New York, 2014 WL 3875181, at *7 (S.D.N.Y. July 23, 2014)

(citing Hudson, 468 U.S. at 532) (internal quotations and

citation omitted). New York, the state whose procedures would

be applicable to Plaintiff’s case, “affords an adequate post-

deprivation remedy in the form of, inter alia, a Court of Claims

action.” See Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001);

see also Davis, 311 Fed. Appx. at 400. If, however, the

deprivation of property resulted from an established state

procedure, “a due process claim may proceed, regardless of

whether there is a postdeprivation remedy.” See Fredericks,

2014 WL 3875181, at *7 (citing Hellenic Am. Neighborhood Action

Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996)).

Here, Plaintiff has not plausibly alleged that any

deprivation of her property was authorized or the result of an

established State procedure. Other than a single vague,

conclusory statement that the officers allegedly informed her

that the Mayor had said that the bike or scooter was illegal,

Plaintiff makes no further allegations that her bike or scooter

was taken pursuant to some established policy.

In sum, to state a claim on which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiff

must either plead facts sufficiently alleging either (1) that

the deprivation of her property was the result of an established

State procedure or (2) that New York’s existing post-deprivation

remedies, such as a Court of Claims action, see Jackson, 256

F.3d at 96, were inadequate. See, e.g., Santagata v. Diaz, 2019

WL 2164082, at *3 (E.D.N.Y. May 17, 2019) (“Federal courts have

found that New York state courts provide adequate post-

deprivation remedies for random and unauthorized property losses

through causes of action for negligence, replevin, and

conversion.”) (collecting cases); see also Marino v. Ameruso,

837 F.2d 45, 47 (2d Cir. 1988) (“Although one need not exhaust

state remedies before bringing a Section 1983 action claiming a

violation of procedural due process, one must nevertheless prove

as an element of that claim that state procedural remedies are

inadequate.”). Accordingly, Plaintiff's deprivation of property

claim is dismissed per § 1915(e)(2)(B)(ii), with leave to amend.

IV. Leave to Amend

If a “liberal reading of the complaint gives any

indication that a valid claim might be stated,” a pro se

plaintiff should be given an opportunity to amend the complaint.

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Shomo

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

Plaintiff may file an amended complaint within 30 days of the

date of this Order to allege her deprivation of property claim.

Should Plaintiff file an amended complaint, she must

satisfy the minimal pleading requirements of Fed. R. Civ. P. 8,

providing the defendant(s) with notice of the claim(s) by

clearly identifying each claim. Plaintiff must provide a short,

plain statement of the relevant facts supporting each claim, and

cannot rely on generalized or conclusory allegations of

misconduct, such as those the Court identified above and those

in No. 22-cv-3175, ECF No. 1 at 8.

If Plaintiff elects to file an amended complaint, she

should label it clearly as an “Amended Complaint” and set forth

specifically what injury each defendant did to cause her to

suffer, when and how it occurred, and who was responsible for

it. Again, conclusory allegations will not suffice to state a

claim. See Iqbal, 556 U.S. at 678. Finally, Plaintiff must

name those individuals who were allegedly involved in the

deprivation of her federal rights as the defendants in the

caption and in the “Statement of Claim.” If Plaintiff does not

know the name of a defendant, she may refer to that individual

as “John Doe” or “Jane Doe” in both the caption and the body of

the Amended Complaint, and should provide detailed physical

descriptions to assist with identifying them. For each

defendant named, Plaintiff should include a brief description of

what each defendant did or failed to do, the date, including the

year, that the incident occurred, where the defendant is

employed, and how the defendant’s acts or omissions caused

Plaintiff injury.

CONCLUSION

For the foregoing reasons, it is hereby ordered that

pursuant to Fed. R. Civ. P. 42(a)(2), actions 22-cv-2335 and 22-

cv-3175 are hereby consolidated. Case No. 22-cv-2335 shall be

referred to and treated as the “lead” case, and all subsequent

orders of this Court and papers that are submitted by the

parties shall be filed in that case.

In addition, Plaintiff's Complaints are dismissed for

failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

Plaintiff is granted thirty days from the date of this

Memorandum and Order to file an amended complaint, which must be

captioned “Amended Complaint” and must list docket number 22-CV-

2335 as the case number. Plaintiff is advised that an amended

complaint replaces her original complaint. If Plaintiff fails

to file an amended complaint within the 30-day period or fails

to cure the deficiencies identified in this Memorandum and

Order, judgment shall enter dismissing this action with

prejudice.

Finally, Plaintiff’s motion to appoint counsel (No.

22-cv-2335, ECF No. 3) is denied. There is no right to counsel

in a civil case. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d

444, 453 (2d Cir. 2013). The Court cannot compel an attorney to

represent a litigant in a civil case without a fee. Mallard v.

U.S. Dist. Court, 490 U.S. 296 (1989). Plaintiff may wish to

consult the City Bar Justice Center’s Federal Pro Se Legal

Assistance Project at (212) 382-4729 for free, limited-scope

legal assistance.

The Court certifies pursuant to 28 U.S.C. § 1915(a) (3)

that any appeal would not be taken in good faith and, therefore,

in forma pauperis status is denied for purpose of an appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The

Clerk of Court is respectfully directed to serve a copy of this

Memorandum and Order on pro se Plaintiff and note service on the

docket.

SO ORDERED.

DATED: February 21, 2023 b “2 _—

Brooklyn, New York “Vy □□□ ot Letre

HON. KIYO A. MATSUMOTO

United States District Judge

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