Wrobleski v. Miller

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

JESSICA WROBLESKI,

Plaintiff,

v. 3:19-CV-0876

(GLS/ML)

INVESTIGATOR AMANDA MILLER,

Binghamton Police Precinct, Individual and

Official Capacities; INVESTIGATOR CARL

PETERS, Binghamton Police Precinct,

Individual and Official Capacities;

BINGHAMTON POLICE PRECINCT; and

CITY OF BINGHAMTON,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

JESSICA WROBLESKI

Plaintiff, Pro Se

190 Henry Street, 1st Floor

Binghamton, New York 13901

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent this pro se complaint together with an application to proceed in forma

pauperis filed by Jessica Wrobleski (“Plaintiff”) to the Court for review. (Dkt. Nos. 1 and 8.)

For the reasons discussed below, I grant Plaintiff’s in forma pauperis application (Dkt. No. 8),

recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed in its entirety and with leave to

amend her equal protection and due process claims against (1) Defendants Miller and Peters in

their individual capacities, and (2) Defendants Miller and Peters in their official capacities to the

extent that Plaintiff seeks prospective, non-monetary relief, but without leave to amend (1)

Plaintiff’s claim pursuant to the Prison Rape Elimination Act (“PREA”), and (2) Plaintiff’s equal

protection and due process claims against (a) Defendants Miller and Peters in their official

capacities to the extent that Plaintiff seeks monetary damages, and (b) the Binghamton Police

Precinct.

I. BACKGROUND

Plaintiff commenced this action by the filing of a Complaint, which was delivered to

prison authorities for mailing on July 15, 2019. (Dkt. No. 1 at 13.)

Construed as liberally1 as possible, Plaintiff’s Complaint alleges that her civil rights were

violated by Defendants Amanda Miller, Carl Peters, the Binghamton Police Department Precinct,

and the City of Binghamton (collectively “Defendants”). (See generally Dkt. No. 1.). More

specifically, Plaintiff alleges that on November 7, 2015, she was at the Binghamton Police

Department as part of an investigation for an alleged felony assault, when she was interviewed

by Defendant Miller and Defendant Peters in a room that had an “older styled camera in the

corner ceiling area.” (Id. at 6.) Plaintiff alleges that she was not informed and did not know if

the camera in the room worked or was recording her. (Id.) Plaintiff alleges that she was

“charged and stripped nude to the panty and bra in the interrogation room by [Defendant] Miller

. . . [w]hile the interrogation room camera recorded.” (Id.)

Plaintiff alleges that in May 2016, her attorney, Michelle Coleman, “revealed to [her] that

the strip search was recorded” and that copies of the search were “passed around to case staff.”

(Id.) In response, Plaintiff alleges that she contacted the Internal Affairs division of the

Binghamton Police Department but that to date, she has not received any response. (Id.)

1 The court must interpret pro se complaints to raise the strongest arguments they suggest.

Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790

(2d Cir. 1994)).

Plaintiff alleges that she “filed a full civil rights complaint to the DOJ who processed and

escalated [her] civil rights complaint . . . [and] assigned [the complaint] to Debra Murphy[,] . . .

[who] called [her] in 12-2016 [to inform her] that the investigation wasn’t complete [but] that a

finding was made of discriminatory practices against [her] race, gender, religion, [and] protected

classes by [the] Binghamton Police Dept[artment].” (Id.)

Plaintiff asserts the following three causes of action: (1) violation of the equal protection

clause pursuant to the Fourteenth Amendment and 42 U.S.C § 1983, (2) discrimination pursuant

to 42 U.S.C. § 1983, and (3) violation of PREA. (Id. at 3.) For relief, Plaintiff seeks “injunctive

[relief] to redact that part of the CD from all copies passed around; in evidence” and monetary

and punitive damages in the amount of $550,000.00. (Id. at 5.)

For a more complete statement of Plaintiff’s claims, refer to the Complaint. (Dkt. No. 1.)

Plaintiff also filed an application for leave to proceed in forma pauperis. (Dkt. No. 8.)

II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $400, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the

standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s in

2 The language of that section is ambiguous because it suggests an intent to limit

availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the

commencement of an action without prepayment of fees “by a person who submits an affidavit

that includes a statement of all assets such prisoner possesses”). The courts have construed that

section, however, as making IFP status available to any litigant who can meet the governing

financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City

of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

forma pauperis application (Dkt. No. 8), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.3

III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court 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).

In order to state a claim upon which relief can be granted, a complaint must contain, inter

alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief

means that 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) (emphasis

added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a

complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial

experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not

shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and

punctuation omitted).

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

3 Plaintiff is reminded that, although the application to proceed in forma pauperis has been

granted, she will still be required to pay fees that she may incur in this action, including copying

and/or witness fees.

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

The Court, however, also has an overarching obligation to determine that a claim is not

legally frivolous before permitting a pro se plaintiff’s complaint to proceed. See, e.g., Fitzgerald

v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district

court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff

paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an

indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law,

or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-

MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston

v. Adirondack Beverage Co., 141 F.3d 434, 437 [2d Cir. 1998]); see also Neitzke v. Williams,

490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual

contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he

decision that a complaint is based on an indisputably meritless legal theory for purposes of

dismissal under section 1915(d), may be based upon a defense that appears on the face of the

complaint.”).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe her

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that all causes

of action be dismissed.

Plaintiff brings this action against Defendants pursuant to 42 U.S.C. § 1983. “To state a

valid claim under § 1983, the plaintiff must allege that the challenged conduct (1) was

attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right,

privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v.

Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-

76 (2d Cir. 1994)). Thus, § 1983 does not create any independent substantive right, but rather

“provides a civil claim for damages” to “redress . . . the deprivation of [federal] rights

established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

In addition, Plaintiff brings one claim pursuant to PREA, which was enacted in 2003 “to

address the problem of rape in prison by creating a commission to study the issue and develop

national standards for the detection, prevention, reduction and punishment of prison rape.”

Amaker v. Fischer, 10-CV-0977A, 2014 WL 4772202, at *14 (W.D.N.Y. Sept. 24, 2014).

A. Claims Pursuant to 42 U.S.C. § 1983

1. Statute of Limitations

The statute of limitations for a § 1983 action accruing in New York is three years. See

Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009). The statute of limitations begins

to run on the date that the plaintiff’s claims accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007).

Federal law governs the accrual date. Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992).

Generally, under federal law, a cause of action accrues when “the plaintiff knows or has

reason to know the injury which is the basis of his action.” Covington v. New York, 171 F.3d

117, 121 (2d Cir. 1999) (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.

1980)); see Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (per curiam)

(citing Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)) (a claim for equal protection

accrues “when the plaintiff knew or should have known of the disparate treatment.”). That is so

even if “the full extent of the injury is not then known or predictable.” Fahs Const. Group, Inc.,

725 F.3d at 292. “[S]tate tolling rules determine whether the limitations period has been tolled,

unless state tolling rules would ‘defeat the goals’ of section 1983.” Abbas v. Dixon, 480 F.3d

636, 641 (2d Cir. 1997) (citing Pearl, 296 F.3d at 80).

Although the statute of limitations is an affirmative defense, where it is clear from the

face of the complaint that a claim is barred by the applicable statute of limitations, the claim is

subject to dismissal for failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review. See Pino v.

Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on initial review

based on a defense that appears on the face of the complaint); Syfert v. City of Rome, 17-CV-

0578, 2018 WL 3121611, at *3-5 (N.D.N.Y. Feb. 12, 2018) (Dancks, M.J.) (dismissing all

claims barred by the statute of limitations on initial review pursuant to 28 U.S.C. §

1915(e)(2)(B)); Syfert v. City of Rome, 17-CV-0578, 2017 WL 3405521, at *8-10 (N.D.N.Y.

Aug. 7, 2017) (same); Syfert v. City of Rome, 15-CV-1149, 2015 WL 6819168, at *7-8

(N.D.N.Y. 2015) (Baxter, M.J.) (same).

Plaintiff commenced this action on July 15, 2019. (Dkt. No. 1.)4 Three years prior to the

filing date is July 15, 2016. Any causes of action in Plaintiff’s Complaint that accrued before

July 15, 2016, are likely barred by the statute of limitations.

Plaintiff alleges that on November 7, 2015, her rights were violated by Defendants when

they videotaped a “strip search” of her. (Dkt. No. 1 at 6.) As a result, Plaintiff’s claims arising

from this incident are untimely because the statute of limitations expired on November 7, 2018.

Plaintiff’s allegations do not amount to a “continuing violation.” The continuing

violation doctrine, where applicable, is an “exception to the normal knew-or-should-have-known

accrual date” if there is evidence of an ongoing discriminatory policy or practice. Gonzalez v.

Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris v. City of New York, 186 F.3d 243, 248

(2d Cir. 1999)). The continuing violation doctrine does not apply to “discrete acts,” even where

those discrete acts are a part of a “serial violation,” but applies solely to claims that “by their

nature accrue only after the plaintiff has been subjected to some threshold amount of

mistreatment.” Gonzalez, 802 F.3d at 220 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 111 (2002)). When the doctrine applies, the limitations period begins to run when the

defendant has engaged in “enough activity to make out an actionable . . . claim,” as long as the

plaintiff has alleged some non-time-barred acts which contributed to the alleged violation. Id.

(quoting Morgan, 536 U.S. at 117; Harris, 186 F.3d at 250). A continuing violation cannot “be

established merely because the claimant continues to feel the effects of a time-barred

4 The Court notes that Plaintiff’s Complaint was filed on July 22, 2019. (Dkt. No. 1.)

However, pursuant to the prison mailbox rule, the Court deems Plaintiff’s Complaint as filed on

July 15, 2019, when she gave it to prison officials. Douglas v. Bughrara, 11-CV-1535, 2013 WL

5347285, at *3 (N.D.N.Y. Sept. 23, 2013) (Kahn, J.).

discriminatory act.” Harris, 186 F.3d at 250 (citing Lightfoot v. Union Carbide Corp., 110 F.3d

898, 907 (2d Cir. 1997)).

The continuing violation doctrine is generally disfavored in this Circuit. See Town of

Ramopo v. Town of Clarkstown, 16-CV-2004, 2017 WL 782500, at *5 (S.D.N.Y. Feb. 27, 2017);

Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 292 (S.D.N.Y. 2011) (quoting Trinidad v.

N.Y.C. Dep’t of Corr., 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y. 2006)) (“[C]ourts in the Second

Circuit ‘have been loath to apply [the continuing violation doctrine] absent a showing of

compelling circumstances.’”).

Here, Plaintiff’s allegations concern a discrete incident that occurred on November 7,

2015. As a result, I find no compelling circumstances present to warrant applying the continuing

violation doctrine.

In addition, there is no indication at this time that this is one of those extraordinary cases

in which equitable tolling should apply.

A § 1983 claim accrues–and the limitations period begins to run–“when the plaintiff has a

complete and present cause of action, that is, when the wrongful act or omission results in

damages.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (“The cause of action accrues

even though the full extent of the injury is not then known or predicable.”). Stated differently, in

determining when the statute of limitations begins to run, the “proper focus is on the time of

[wrongful] act, not the point at which the consequences of the act become painful.” Bailey v.

Tricolla, 94-CV-4597, 1995 WL 548714, at *3 (E.D.N.Y. Sept. 12, 1995) (quoting Chardon v.

Fernandez, 454 U.S. 6, 8 (1981)).

According to Plaintiff, “[i]n 5-2016, my Court appointed [criminal defense attorney]

Michelle Coleman revealed to me that the strip search was recorded, on interrogation room DVD

[and] copies [were] passed around to case staff. I saw for myself in her office.” (Dkt. No. 1 at

6.)

Thus, to the extent Plaintiff traces the alleged violation of her civil rights to the

videotaped “strip search” on November 7, 2015, the statute of limitations on her claims would

have expired on November 7, 2018, and, at the very latest, in May 2019, when her criminal

defense attorney “revealed to [her] that the strip search was recorded.” (Dkt. No. 1 at 6.) As

such, the Court finds that the statute of limitations should not be tolled on that basis.

Under New York law, “the doctrine of fraudulent concealment prevents a party from

fraudulently concealing wrongdoing until after the tolling of the statute of limitations.” Aiken v.

Nixon, 236 F. Supp. 2d 211, 240 (N.D.N.Y. 2002) (McAvoy, J.). “To invoke the doctrine of

fraudulent concealment properly [for purposes of seeking an equitable tolling of the statute of

limitations], a plaintiff must establish three elements, including: (1) wrongful concealment by

defendants [of their actions], (2) which prevented plaintiff’s discovery of the nature of the claim

within the limitations period, and (3) due diligence in pursuing the discovery of the claim.” N.Y.

Dist. Council of Carpenters Pension Fund v. Forde, 939 F. Supp. 2d 268, 278 (S.D.N.Y. 2013)

(citing In re Merrill Lynch Ltd. P’ships Litig., 154 F.3d 56, 60 (2d Cir. 1998); Butala v.

Agashiwala, 916 F. Supp. 314, 319 (S.D.N.Y. 1996)). “The relevant question is not the intention

underlying defendants’ conduct, but rather whether a reasonable plaintiff in the circumstances

would have been aware of the existence of a cause of action.” Veltri v. Bldg. Serv. 32b-J

Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004) (citing Pearl, 296 F.3d at 82; Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990)).

Here, the Court finds Plaintiff has not plausibly alleged any of the three elements to

invoke this doctrine.

Further, although not raised by Plaintiff, having carefully reviewed the Complaint, the

Court discerns no basis to invoke equitable tolling or equitable estoppel in order to salvage what

are otherwise patently untimely claims. Under New York law, equitable tolling applies “where a

plaintiff has been prevented in some extraordinary way from exercising rights,” such that “it

would have been impossible for a reasonably prudent person to learn about his or her cause of

action.” Pearl, 296 F.3d at 85. In a related but slightly different vein, equitable estoppel is

available “where the plaintiff knew of the existence of his cause of action but the defendant’s

conduct caused him to delay bringing the lawsuit.” Dillman v. Combustion Eng’g, Inc., 784 F.3d

76, 85 (2d Cir. 1986); see also Abbas, 480 F.3d at 642 (stating that equitable estoppel applies

when a “plaintiff was induced by fraud, misrepresentation or deception to refrain from filing a

timely action”). Under either doctrine, “[d]ue diligence on the part of the plaintiff in bringing an

action . . . is an essential element of equitable relief.” Abbas, 480 F.3d at 642 (quoting Doe v.

Holy See (State of Vatican City), 17 A.D. 3d 793, 796 (N.Y. App. Div. 3d Dep’t 2005)).

As a result, the Court finds Plaintiff is not entitled to tolling and, thus, her claims, which

are based on events that occurred before July 15, 2016, are time-barred.

Therefore, I recommend dismissing, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

to state a claim, Plaintiff’s claims pursuant to 42 U.S.C. § 1983 because they are based on time-

barred events.

2. Claim Based on Equal Protection

In the alternative, with respect to Plaintiff’s equal protection claim pursuant to the

Fourteenth Amendment and 42 U.S.C. § 1983, I recommend dismissal for failure to state a claim

upon which relief may be granted.

The Equal Protection Clause requires that the government treat similarly situated people

in a similar manner. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “This

provision does not mandate identical treatment for each individual.” Muhmmaud v. Murphy, 632

F. Supp. 2d 171, 178 (D. Conn. 2009) (citing City of Cleburne, 473 U.S. at 439-40). To prevail

on such a claim, a plaintiff must demonstrate that “he was treated differently from other similarly

situated individuals and that the reason for this different treatment was based on ‘impermissible

considerations such as race, religion, intent to inhibit or punish the exercise of constitutional

rights, or malicious or bad faith intent to injure a person.’” Muhmmaud, 632 F. Supp. 2d at 178

(quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000)). Plaintiff has not

asserted or alleged that she is a member of a protected class, but alleged in wholly conclusory

terms that “Debra Murphy [assigned to Plaintiff’s DOJ civil rights complaint] called [her] in 12-

2016 [and said] that the investigation wasn’t complete [but] that a finding was made of

discriminatory practices against [Plaintiff’s] race, gender, religion, [and] protected classes, by

Binghamton Police Dept[artment].” (Dkt. No. 1 at 6; accord Dkt. No. 1 at 10.)

Even assuming that Plaintiff’s equal protection claim is based on a “class of one theory,”

to state such a claim, a plaintiff must allege that “(1) he has been intentionally treated differently

from others similarly situated, and (2) there is no rational basis for the difference in treatment.”

Muhmmaud, 632 F. Supp. 2d at 179 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000)). Plaintiff has not alleged that she was intentionally treated differently by Defendants,

that she was treated differently than any other similarly situated individual or that there was not a

rational basis for the treatment. Without any such allegations, Plaintiff has failed to state a viable

equal protection claim. See Green v. Martin, 224 F. Supp. 3d 154, 171-72 (D. Conn. 2016)

(dismissing the plaintiff’s claims where he did not allege that he was a member of a protected

class and also failed to allege facts plausibly suggesting that “he was intentionally treated

differently by Defendant [], that he was treated differently than any similarly situated inmate or

that there was not a rational basis for the treatment.”).

As a result, in the alternative, I recommend that Plaintiff’s equal protection claim be

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.

3. Claims Against Defendants Miller and Peters in Their Official

Capacities

After careful consideration, in the alternative, I recommend dismissal of Plaintiff’s claims

pursuant to 42 U.S.C. § 1983 against Defendants Miller and Peters in their official capacities to

the extent that Plaintiff requests monetary relief.5

5 “Under the doctrine in Ex Parte Young, ‘a plaintiff may avoid the Eleventh

Amendment bar to suit and proceed against individual state officers . . . in their official

capacities, provided his complaint (a) alleges an ongoing violation of federal law and (b) seeks

relief properly characterized as prospective.’” Clark v. DiNapoli, 510 F. App’x 49, 51 (2d Cir.

2013) (quoting In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007)). However, “[a]

plaintiff may not use this doctrine to adjudicate the legality of past conduct,” meaning there must

be some “plausible threat of future violations.” Clark, 510 F. App’x at 51 (citing Papasan v.

Allain, 478 U.S. 265, 277-78 (1986)); see W. Mohegan Tribe and Nation, 395 F.3d at 21 (noting

that, “in determining whether the Ex Parte Young doctrine applies to avoid an Eleventh

Amendment bar to suit, ‘a court need only conduct a straightforward inquiry into whether the

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective’”); see also New York State Corr. Officers & Police Benev. Ass’n, Inc. v. New York,

911 F. Supp. 2d 111, 129 (N.D.N.Y. 2012) (D'Agostino, J.) (“[D]eclaratory relief is not

permitted under Ex Parte Young, when it would serve to declare only past actions in violation of

federal law: retroactive declaratory relief cannot be properly characterized as prospective.”).

The relevant non-monetary relief requested by Plaintiff in the Complaint includes

“injunctive [relief] to redact that part of the CD from all copies passed around; in evidence.”

(Dkt. No. 1, at 5.) Plaintiff’s request for non-monetary relief, appears to have some prospective

grounding. See Keyes v. Annucci, 2019 WL 4602240, at *8 (N.D.N.Y. Sept. 23, 2019) (holding

that a request for injunctive relief ordering the defendants and custodians of records to expunge

all entries of the disciplinary hearings and dispositions from the plaintiffs’ records, to have

prospective grounding, and thus, holding that the request for relief was not barred by the

Eleventh Amendment). Consequently, I recommend that, to the extent Plaintiff’s claims are

premised on this prospective basis for relief, any claims against Defendants Miller and Peters in

their official capacities are not barred by the Eleventh Amendment.

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

U.S. Const. amend. XI. Regardless of the nature of the relief sought, in the absence of the

State’s consent or waiver of immunity, a suit against the State or one of its agencies or

departments is proscribed by the Eleventh Amendment. Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984). “New York State has not consented to suit in federal

court.” Abrahams v. Appellate Div. of Supreme Court, 473 F. Supp. 2d 550, 556 (S.D.N.Y.

2007) (citing Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d. Cir. 1977)).

Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states.

See Quern v. Jordan, 440 U.S. 332, 340-41 (1979). “[C]laims against a government employee in

his official capacity are treated as a claim against the municipality,” and, thus, cannot stand

under the Eleventh Amendment. Hines v. City of Albany, 542 F. Supp. 2d 218, 227 (N.D.N.Y.

2008).

Accordingly, in the alternative, the Court recommends that all claims against Defendants

Miller and Peters in their official capacities be dismissed with prejudice and without leave to

amend. Jackson v. Gunsalus, 16-CV-0647, 2016 WL 4004612, at *2 (N.D.N.Y. June 24, 2016)

(Dancks, M.J.), report and recommendation adopted, 2016 WL 3983635 (July 25, 2016)

(Sharpe, J.).

4. Claims Against the Binghamton Police Precinct

After careful consideration, in the alternative, I recommend dismissal of Plaintiff’s claims

pursuant to 42 U.S.C. § 1983 against Defendant Binghamton Police Precinct.

A municipal police department is not susceptible to suit pursuant to 42 U.S.C. § 1983. La

Grande v. Town of Bethlehem Police Dep’t, 08-CV-0738, 2009 WL 2868231, at *2 (N.D.N.Y.

Sept. 1, 2009); Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002)

(internal citations omitted). “Under New York law, departments which are merely

administrative arms of a municipality do not have a legal identity separate and apart from the

municipality and cannot sue or be sued.” Walker v. U.S. Marshalls, 08-CV-0959, 2009 WL

261527, at *2 (E.D.N.Y. Feb. 4, 2009) (quoting Hall v. City of White Plains, 185 F. Supp. 2d

293, 303 (S.D.N.Y. 2002)); see also Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 164 (D.

Conn. 2005) (collecting cases).

Here, Plaintiff’s claims against the Binghamton Police Precinct, which also has no legal,

separate identity apart from the City of Binghamton, is not plausible. Therefore, I recommend

dismissal of the claims against Defendant Binghamton Police Precinct with prejudice and

without leave to amend. See Jackson, 2016 WL 4004612, at *5 (dismissing claims against the

Syracuse Police Department with prejudice and without leave to amend because the Syracuse

Police Department “is not susceptible to suit under § 1983.”).

B. Claim Pursuant to PREA

In her Complaint, Plaintiff alleges that Defendants violated PREA. (Dkt. No. 1 at 3.) To

the extent that Plaintiff is attempting to assert a claim for violation of the statute, her claim fails

as there is no private right of action under the PREA. See Bowens v. Wetzel, 674 F. App’x 133,

137 (3rd Cir. 2017) (“Bowens may not attempt to enforce statutes or policies that do not

themselves create a private right of action by bootstrapping such standards into a constitutional

deliberate indifference claim.”); Krieg v. Steele, 599 F. App’x 231, 232-33 (5th Cir. 2015)

(finding that PREA does not afford a private right of action); Aaron v. Kelly, 19-CV-0089, 2019

WL 4458416, at *5 (E.D. Ark. Aug. 21, 2019) (recommending dismissal of the plaintiff’s claims

pursuant to PREA); Green v. Martin, 224 F. Supp. 3d 154, 170-71 (D. Conn. 2016) (citing Jones

v. Forbes, 16-CV-0014, 2016 WL 4435081, at *3 (D. Conn. Sept. 25, 2012)) (holding that the

plaintiff “cannot bring an individual claim based on a violation of [PREA]’s provisions. Thus,

any claim under the Prison Rape Elimination Act is dismissed pursuant to 28 U.S.C. §

1915A(b)(1)); see also Miller v. Annucci, 2019 WL 4688539, at *10 (S.D.N.Y. Sept. 26, 2019)

(“Even accepting Plaintiff’s allegations as true, ‘[t]o the extent that Plaintiff’s claim is based on a

failure to investigate his allegations of sexual assault under [PREA], it must be dismissed

because nothing in the statute suggests that PREA intended to establish a private claim for

allegations of prison rape, and every court to address the issue has determined that PREA cannot

support such a claim by an inmate.”). As a result, I recommend dismissal of this claim.

V. OPPORTUNITY TO AMEND

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to amend is not required, however, where “the problem

with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).6

Generally, a district court should not dismiss claims as time-barred without providing a

pro se plaintiff with “notice and opportunity to be heard” as to whether there might be a

meritorious tolling argument or other reason why the complaint might be considered. Abbas,

480 F.3d at 640. As a result, I recommend that Plaintiff’s time-barred claims (claims pursuant to

42 U.S.C. § 1983) be dismissed with leave to amend.

Likewise, it is recommended that to the extent that Plaintiff’s claims pursuant to 42

U.S.C. § 1983 are not dismissed based on the statute of limitations, but Plaintiff’s equal

protection claim is dismissed for failure to state a claim, that she be granted leave to amend that

claim.

However, I recommend that to the extent that Plaintiff’s claims pursuant to 42 U.S.C. §

1983 are not dismissed based on the statute of limitations, but are dismissed against Defendants

Miller and Peters in their official capacities to the extent those claims seek monetary damages, I

recommend that those claims be dismissed with prejudice and without leave to amend. Jackson,

2016 WL 4004612, at *2.

Moreover, to the extent that Plaintiff’s claims pursuant to 42 U.S.C. § 1983 are not

dismissed based on the statute of limitations, but are dismissed against the Binghamton Police

6 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999), that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim” is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

Precinct because it is not a susceptible to suit under § 1983, I recommend that those claims be

dismissed with prejudice. Jackson, 2016 WL 4004612, at *5.

In addition, for the reasons set forth in Part IV.B. of this Order and Report-

Recommendation, the problem with Plaintiff’s PREA claim is substantive, such that better

pleading will not cure it. Ruffolo, 987 F.2d at 131. Therefore, it is recommended that Plaintiff’s

PREA claim be dismissed without leave to amend. Walsh v. N.J. Dep’t of Corr., 17-CV-2442,

2017 WL 3835666, at *3 (D.N.J. Aug. 31, 2017) (dismissing with prejudice the plaintiff’s PREA

claims); Patterson v. Patterson, 2017 WL 1383899, at *4 (W.D.N.Y. Apr. 14, 2017) (dismissing

with prejudice, the plaintiff’s claims pursuant to PREA “[b]ecuase no amendment could cure this

defect.”); Colleen v. Yamaoka, 14-CV-0577, 2015 WL 793085, at *4 (D. Haw. Feb. 25, 2015)

(dismissing the plaintiff’s claims brought under PREA against all defendants with prejudice

because leave to amend would be futile); Hatcher v. Harrington, 14-CV-0554, 2015 WL

474313, at *5 (D. Haw. Feb. 5, 2015) (same).

If Plaintiff chooses to file an amended complaint, she should note that the law in this

circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient

unless they contain some specific allegations of fact indicating a deprivation of rights, instead of

a litany of general conclusions that shock but have no meaning.’” Hunt v. Budd, 895 F. Supp.

35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.

1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.

May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth

facts that give rise to the claims, including the dates, times, and places of the alleged underlying

acts, and each individual who committed each alleged wrongful act. In addition, the revised

pleading should allege facts demonstrating the specific involvement of any of the named

defendants in the constitutional deprivations alleged in sufficient detail to establish that they

were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.

1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing

Complaint, and must be a wholly integrated and complete pleading that does not rely upon or

incorporate by reference any pleading or document previously filed with the Court. See Shields

v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an

amended complaint ordinarily supersedes the original and renders it of no legal effect.”).

VI. SUMMARY, RECOMMENDATION, AND ORDER

Having reviewed Plaintiff’s IFP application, I find that she meets the requirements for

IFP status, and therefore grant her motion for leave to proceed without prepayment of fees.

Turning to the merits of Plaintiff’s Complaint, I recommend that Plaintiff’s Complaint be

dismissed in its entirety.

WHEREFORE, based on the findings above, it is

ORDERED that the application to proceed in forma pauperis (Dkt. No. 8) is

GRANTED; and it is further respectfully

RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD

Plaintiff’s (1) Prison Rape Elimination Act claim, and (2) claims pursuant to 42 U.S.C. § 1983

(a) for monetary damages against Defendants Miller and Peters in their official capacities, and

(b) against the Binghamton Police Precinct, pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to

state a claim upon which relief may be granted; and it is further

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against (1) Defendant City of Binghamton, (2)

Defendants Miller and Peters in their individual capacities, and (3) Defendants Miller and Peters

in their official capacities to the extent that Plaintiff seeks prospective non-monetary relief,

pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be

granted.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within

which to file written objections to the foregoing report.’ Such objections shall be filed with the

Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN

DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

It is hereby respectfully ORDERED that the Clerk of the Court shall file a copy of this

order, report, and recommendation on the docket of this case and serve a copy upon the parties in

accordance with the local rules.*

Dated: December 2, 2019

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

7 If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

8 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

20