“It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not . . . by private complaints.”
How later courts described this case
- “It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not . . . by private complaints.”
Written by the judges who cited it.
The opinion
UEANSITTEEDRN S TDAISTTERSI DCITS OTRFI NCET WC OYUORRTK
Dane Wilson,
MEMORANDUM AND ORDER
Plaintiff,
No. 23-cv-7771 (NRM) (CLP)
v.
The City of New York, The New York
City Police Department, Police Officer
Johnathan Robinson, Shield No. 25901
of the 113th Precinct, Police Officers
John Doe 1-12, Police Officers Jane Doe
1-12, The City of New York Pretrial
Diversion Program, and The State of
New York,
Defendants.
NINA R. MORRISON, United States District Judge:
On October 16, 2023, Plaintiff Dane Wilson, proceeding pro se, filed this action
against Defendants pursuant to 42 U.S.C. § 1983, 18 U.S.C. §§ 241 and 242,1 and 34
U.S.C. § 12601.2 Compl., ECF No. 1. By Order dated October 26, 2023, the Court
1 18 U.S.C. §§ 241 and 242, both criminal statutes, do not provide a private
right of action. Robinson v. Overseas Mil. Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994);
Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009) (summary order) (“[C]laims
based on the violation of federal criminal statutes, such as 18 U.S.C. §§ 241–242, . . .
are not cognizable, as federal criminal statutes do not provide private causes of
action.”); Lodrini v. Sebelius, No. 14-cv-3137, 2014 WL 2446073, at *4 (E.D.N.Y. May
29, 2014) (18 U.S.C. §§ 241 and 242 do not provide a private cause of action); Conn.
Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86–87 (2d Cir. 1972) (“It is a
truism, and has been for many decades, that in our federal system crimes are always
prosecuted by the Federal Government, not . . . by private complaints.”).
2 34 U.S.C. § 12601 is not applicable and also does not provide a private right
of action. See 34 U.S.C. § 12601(b) (“[T]he Attorney General, for or in the name of the
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denied Plaintiff’s application to proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) with leave to amend. Order Denying IFP, ECF No. 4. On November
13, 2023, Plaintiff filed an amended IFP application. Am. Mot. for IFP, ECF No. 5.
The Court grants Plaintiff’s amended IFP application pursuant to 28 U.S.C. § 1915(a).
As set forth below, the complaint is dismissed as to the New York City Police
Department, the City of New York Pretrial Diversion Program, and the State of New
York. The complaint may proceed at this time as to the City of New York, Police
Officer Johnathan Robinson and the Jane and John Doe Police Officers once they are
identified.
The Clerk of Court shall issue a summons as to the City of New York and Police
Officer Johnathan Robinson of the 113th Police Precinct, and the United States
Marshals Service shall serve the City of New York and Police Officer Robinson
without prepayment of fees.
BACKGROUND
Plaintiff alleges that on August 29, 2022, he was “forcibly pulled out of his
vehicle, restrained with excessive force” and taken to the 113th Police Precinct, where
he was “booked and charged.” Compl. at 4–5.3 Plaintiff alleges that he sustained
injuries during the arrest and that his vehicle was impounded. Id. Plaintiff further
United States, may in a civil action obtain appropriate equitable and declaratory
relief.”); Ming v. Brouillete, No. 6:23-cv-0086, 2023 WL 5779558 at *4 (N.D.N.Y. Apr.
7, 2023).
3 The Court refers to the page numbers assigned by the Court’s Electronic Case
Filing (“ECF”) system.
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alleges that Officer Robinson and other police officers entered his home pursuant to
a “No-Knock Search Warrant” and caused significant damage to his residence and
destroyed his property. Id. at 5.4 Plaintiff “was arraigned on August 31, 2022,” and
was “forced to participate in a Pretrial Diversion Program for seven months.” Id. at
5. “On March 29, 2023, all five criminal charges filed against Plaintiff were dismissed
by the Court.” Id. at 6.5 Plaintiff seeks $1 million in damages. Id. at 21.
STANDARD OF REVIEW
“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) (internal
quotation marks and citations omitted). If a liberal reading of the complaint “gives
any indication that a valid claim might be stated,” a court must grant leave to amend
the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
omitted). However, “a complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
will be considered plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. In addition, 28 U.S.C. § 1915(e)(2)(B)
requires a district court to dismiss a case filed in forma pauperis if the court
4 Plaintiff references an Exhibit C, but it was not included. See Compl. at 5.
5 Plaintiff references an Exhibit D, but it was not included. See Compl. at 6
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determines that the action: “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
A. New York City Police Department and City of New York Pretrial
Diversion Program
Plaintiff sues the New York City Police Department (“NYPD”) and the City of
New York Pretrial Diversion Program (the “Pretrial Diversion Program”). Section
396 of the New York City Charter provides that “[a]ll 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.” N.Y. City Charter Ch. 17, § 396. Courts have relied on that provision to
conclude that “the NYPD is a non-suable agency of the City.” Jenkins v. City of New
York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Iosilevich v. City of New York, No.
22-cv-3714, 2023 WL 3231597, at *2 (E.D.N.Y. May 3, 2023). Therefore, Plaintiff’s
complaint cannot proceed against the NYPD and Plaintiff’s claims against the NYPD
are dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
Moreover, because Plaintiff’s complaint states that “[a]t all times relevant
hereto, . . . all employees of the New York City Pretrial Diversion Program, were
employees of the NYPD, and thus, the City,” Compl. at 20, the Court construes
Plaintiff’s claims against the Pretrial Diversion Program as claims against the
NYPD. Accordingly, for the same reason that Plaintiff’s claims against the NYPD
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cannot survive, Plaintiff’s claims against the Pretrial Diversion Program are
dismissed.
B. State of New York
Plaintiff also sues the State of New York. “The Eleventh Amendment bars a
damages action in federal court against a state and its officials when acting in their
official capacity unless the state has waived its sovereign immunity or Congress has
abrogated it.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d
178, 193 (2d Cir. 2015). It is well-settled that New York has not waived its sovereign
immunity in federal court from suits for damages. See Trotman v. Palisades
Interstate Park Comm’n, 557 F.2d 35, 39–40 (2d Cir. 1977) (holding that Section 8 of
the New York Court of Claims Act is not a waiver of sovereign immunity from suit
for damages in federal court). Nor has Congress abrogated states’ sovereign
immunity for claims brought under 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S.
332, 342–43 (1979); Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990);
Malek v. Unified Court System, No. 22-cv-5416, 2023 WL 2429528, at *12 (E.D.N.Y.
Mar. 9, 2023). Therefore, Plaintiff’s complaint cannot proceed against the State of
New York, and it is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
C. Identifying Remaining Defendants
At this juncture, Plaintiff has stated sufficient facts to proceed on his claims
against the remaining Defendants. However, the United States Marshals Service
will not be able to serve the individuals identified as Police Officers John Doe #1-12
and Police Officers Jane Doe #1-12, all employed by the NYPD, without further
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identifying information. Accordingly, the Court hereby requests the Corporation
Counsel for the City of New York to ascertain the full names of these Defendants.
Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam).
The Court also requests that the Corporation Counsel provide the addresses
where these Defendants can currently be served. The information should be provided
to the Court within 45 days from the date of this Order. Once these Defendants have
been identified, Plaintiff’s complaint shall be deemed amended to reflect the full
names of these Defendants, a summons shall issue, and the Court shall direct service
by the United States Marshals Service on these Defendants without prepayment of
fees.
CONCLUSION
Accordingly, the complaint, filed in forma pauperis, is dismissed as to the
NYPD, the Pretrial Diversion Program, and the State of New York pursuant to 28
U.S.C. § 1915(e)(2)(B). No summons shall issue against these Defendants and the
Clerk shall terminate these Defendants from the case. The complaint shall proceed
as to the remaining Defendants.
The Clerk of Court shall issue a summons as to the City of New York and Police
Officer Johnathan Robinson of the 113th Police Precinct and the United States
Marshals Service shall serve the City of New York and Police Officer Robinson
without prepayment of fees.
The case is referred to the Honorable Cheryl L. Pollak, United States
Magistrate Judge, for pretrial supervision.
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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).
The Clerk of Court is respectfully directed to mail a copy of this Order to the
pro se Plaintiff and also to the Corporation Counsel for the City of New York, Special
Federal Litigation Division, and to note the mailing on the docket.
SO ORDERED.
_______________ _____________________
NINA R. MORRISON
United States District Judge
Dated: March 26, 2024
Brooklyn, New York
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