Dunn v. Onondaga County Medical Examiner's Office

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

NICOLE LEE DUNN,

Plaintiff,

5:23-cv-00730

v. (GTS/TWD)

ONONDAGA COUNTY MEDICAL EXAMINER’S

OFFICE and INVESTIGATOR MATTHEW KELLY,

Defendants.

_______________________________________________

APPEARANCES:

NICOLE LEE DUNN

Plaintiff, pro se

8418 Theodolite Drive

#722

Baldwinsville, NY 13027

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

On June 16, 2023, pro se plaintiff Nicole Lee Dunn (“Plaintiff”) commenced this action

pursuant to 42 U.S.C. § 1983 against the defendants Onondaga County Medical Examiner’s

Office and Investigator Matthew Kelly (together “Defendants”) “for relief and damages to

defend and protect rights by the Constitution of United States.” (Dkt. No. 1 at ¶¶ 1, 3.1) Plaintiff

has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”).

(Dkt. No. 2.) The complaint states the following facts, in full:

Applicable to death investigation of Forensics to scene 02/02/2013

deceased, Salena Bennett, I, Nicole Lee Dunn, biological daughter

1 Unless otherwise indicated, excerpts from Plaintiff’s complaint are reproduced exactly as they

appear in the original and errors in spelling, punctuation, and grammar have not been corrected.

expressed concerns to Inv. Kelly whom responses were not par to

statements, questions I communicated to he in verbal conversation.

Applicable to Medical Examiner and persons whom are

representation to Medical Examiner’s Office I did not receive

proper, timely to reason(s) etc. in regard to pre and post autopsy,

forensics to include “outside”/anxillary labs involved.

Id. at ¶ 4. The complaint does not list any causes of action. See id. at ¶ 5. From what the Court

can glean, as relief, she seeks “damages” and “further information” related to the foregoing

described “improper misconduct” and “death investigation.” Id. at ¶ 6; see also Dkt. No. 1-1.

I. IFP APPLICATION

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

currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed IFP if a party “is unable to pay” the standard fee for

commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff’s IFP application

(Dkt. No. 2), the Court finds she meets this standard. Therefore, Plaintiff’s IFP application is

granted.

II. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

The Court must dismiss an IFP complaint, or any portion of the complaint, that is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

To determine whether an action is frivolous, a court must look to see whether the

complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989). To survive dismissal for failure to state a claim, a complaint must plead enough

facts to state a claim that is “plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of

Civil Procedure (“FRCP”) which sets forth the general rules of pleading, “does not require

detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id.

In determining whether a complaint states a claim upon which relief may be granted, “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). “[T]he tenet that a court must accept as true all of the allegations contained in

a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Where a plaintiff is proceeding pro se, the court construes his pleadings “to raise the strongest

arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d

Cir. 2006) (per curiam) (internal quotation marks omitted). However, this “does not exempt a

[pro se litigant] from compliance with relevant rules of procedural and substantive law.”

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

B. Analysis

Plaintiff brings this action pursuant to Section 1983, which establishes a cause of action

for “‘the deprivation of any rights, privileges, or immunities secured by the Constitution and

laws’ of the United States.” German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573

(S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42

U.S.C. § 1983)) (footnote omitted). “Section 1983 itself creates no substantive rights, [but] . . .

only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James,

13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). To establish liability under the statute, a

plaintiff must plead that each government official defendant violated the Constitution through

that official’s own individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020).

An official may not be held liable for constitutional violations simply because he held a high

position of authority. Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016). A municipality cannot

be held liable under Section 1983 unless the challenged action was undertaken pursuant to a

municipal policy, custom, or practice. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 694 (1978).

Plaintiff’s complaint is largely incomprehensible and must be dismissed for several

reasons. Rule 8 of the FRCP requires a “short and plain statement” of a claim, showing that “the

pleader is entitled to relief.” Whitfield v. Johnson, 763 F. App’x 106, 107 (2d Cir. 2019)

(quoting Fed. R. Civ. P. 8(a)). Each statement must be “simple, concise, and direct,’ and must

give ‘fair notice of the claims asserted.” Id. (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d

Cir. 1995)). A pleading must also contain “a demand for the relief sought[.]” Id. “A complaint

may be dismissed under Rule 8 if it is ‘so confused, ambiguous, or otherwise unintelligible that

its true substance, if any, is well disguised.’” Id. Moreover, Rule 10 of the FRCP provides that

“[a] party must state its claims or defenses in numbered paragraphs, each limited as far as

practicable to a single set of circumstances[.]” Fed. R. Civ. P. 10(b). Rule 10’s purpose is to

“provide an easy mode of identification for referring to a particular paragraph in a prior

pleading[.]” Clervrain v. Robbins, No. 1:22-cv-1248 (MAD/DJS), 2022 WL 17517312, at *2

(N.D.N.Y. Dec. 8, 2022) (citation omitted), report and recommendation adopted, 2023 WL

3170384 (N.D.N.Y. May 1, 2023). A complaint that does not comply with these Rules “presents

far too heavy a burden in terms of defendants’ duty to shape a comprehensive defense and

provides no meaningful basis for the Court to assess the sufficiency of [the plaintiff’s] claims,”

and may properly be dismissed by the court. Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y.

1996).

As it currently stands, Plaintiff’s complaint wholly fails to provide fair notice of the

claims she attempts to assert. Given its lack of clarity, the Court recommends dismissal of the

complaint because it is not acceptable under Rules 8 and 10 of the FRCP and because Plaintiff’s

Section 1983 claims against Defendants are entirely unclear.

Insofar as Plaintiff seeks to impose liability upon the Onondaga County Medical

Examiner’s Office, it lacks an independent legal identity apart from the municipality, Onondaga

County, and cannot be sued directly. See Jackson v. Cty. of Nassau, No. 07-CV-245, 2010 WL

335581, at *5 (E.D.N.Y. Jan. 22, 2010) (“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.”); Davis v. Lynbrook Police Dep’t, 224 F. Supp. 2d 463,

477 (E.D.N.Y. 2002) (dismissing claim against the local police department because, as an

“administrative arm of a municipality[, it] do[es] not have legal identity separate and apart from

the municipality, and therefore, cannot sue or be sued.”). Therefore, the Court recommends

dismissing this Defendant for failing to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).

In any event, municipal governments like Onondaga County may be held liable under

Section 1983 “only for unconstitutional or illegal policies, not for the illegal conduct of their

employees.” Monell, 436 U.S. at 691. As is readily apparent, Plaintiff’s complaint is devoid of

any such allegation.

Lastly, claims brought under Section 1983 generally must be filed within three years of

the date a claim accrues.2 Section 1983 claims generally accrue when a plaintiff knows or has

reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518

(2d Cir. 2013). While Plaintiff’s Section 1983 claims are not clear, Plaintiff appears to complain

about events that occurred in February 2013, and the complaint was filed in June 2023, well after

the three-year limitation period likely expired.3 Thus, in the absence of some basis for tolling or

disregarding the limitations period, any Section 1983 claims, which are based on alleged events

that occurred in February 2013, i.e., more than three years before the complaint was filed on June

16, 2023, are likely subject to dismissal as untimely asserted. See Abbas v. Dixon, 480 F.3d 636,

640-41 (2d Cir. 2007) (explaining that a district court should not dismiss a complaint as time-

barred without providing a pro se plaintiff with notice and an opportunity to be heard as to

whether there might be a meritorious tolling argument or other reason why the complaint might

be considered timely);4 see also Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d

2 The statute of limitations for Section 1983 claims is found in the “general or residual

[state] statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d

76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York,

that period is three years. See N.Y. C.P.L.R. § 214(5).

3 However, because the failure to file an action within the limitations period is an

affirmative defense, a plaintiff is not required to plead that the case is timely filed. See Abbas v.

Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence

of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading.

See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)

(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain

circumstances where the facts supporting the statute of limitations defense are set forth in the

papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.

Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on

statute of limitations grounds); see also Abbas, 480 F.3d at 640 (concluding that district court

should grant notice and opportunity to be heard before dismissing complaint sua sponte on

statute of limitations grounds).

4 Equitable tolling is available in “rare and exceptional” cases where “extraordinary

circumstances prevented a party from timely performing a required act,” and “the party acted

with reasonable diligence throughout the period” to be tolled. Walker v. Jastremski, 430 F.3d

280, 293 (2d Cir. 2011) (“[D]istrict courts may dismiss an action sua sponte on limitations

grounds in certain circumstances where the facts supporting the statute of limitations defense are

set forth in the papers plaintiff himself submitted.”) (internal quotation marks and citation

omitted); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of

complaint as frivolous on statute of limitations grounds).

III. OPPORTUNITY TO AMEND

Generally, before a court dismisses a pro se complaint or any part of the complaint sua

sponte, the court should afford the plaintiff the opportunity to amend at least once. Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). However, leave to amend may be denied

where any amendment would be futile. Id. Futility is present when 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) (citation omitted).

Although this Court has serious doubts, it is not clear whether better pleading would

permit Plaintiff to assert a cognizable cause of action against Investigator Michael Kelly or

Onondaga County. Out of an abundance of caution and in deference to Plaintiff’s pro se status,

the Court recommends the complaint be dismissed with leave to amend to cure the defects as

stated above.

The Court advises Plaintiff that should she be permitted to amend her complaint, any

amended pleading she submits must comply with Rules 8 and 10 of the FRCP. Any such

560, 564 (2d Cir. 2005). As the Second Circuit recognized in Abbas, New York law recognizes

the equitable tolling doctrine where a plaintiff demonstrates that he was induced by fraud,

misrepresentations, or deception to refrain from timely commencing an action, and that he acted

with due diligence throughout the period to be tolled. See Abbas, 480 F.3d at 642; see also

Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (“Equitable tolling is an extraordinary

measure that applies only when plaintiff is prevented from filing despite exercising that level of

diligence which could reasonably be expected in the circumstances.”).

amended complaint, which shall supersede and replace in its entirety the previous complaint filed

by Plaintiff, must contain sequentially numbered paragraphs containing only one act of

misconduct per paragraph. Thus, if Plaintiff claims that her civil and/or constitutional rights

were violated by more than one defendant, or on more than one occasion, she should include a

corresponding number of paragraphs in her amended complaint for each such allegation, with

each paragraph specifying (i) the alleged act of misconduct; (ii) the date, including the year, on

which such misconduct occurred; (iii) the names of each and every individual who participated

in such misconduct; (iv) where appropriate, the location where the alleged misconduct occurred;

and (v) the nexus between such misconduct and Plaintiff’s civil and/or constitutional rights. If

Plaintiff asserts claims that are time barred, she should also include facts showing that the

limitation period should be tolled.

Plaintiff is further cautioned that no portion of her prior complaint shall be incorporated

into her amended complaint by reference. Any amended complaint submitted by Plaintiff must

set forth all of the claims she intends to assert against the defendants and must demonstrate that a

case or controversy exists between the Plaintiff and the defendants which Plaintiff has a legal

right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging the defendants

violated a law, she should specifically refer to such law.

WHEREFORE, based on the findings above, it is hereby

ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED;5 and it is further

RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) be DISMISSED WITH

LEAVE TO AMEND; and it is further

5 Although her IFP Application has been granted, Plaintiff will still be required to pay

fees that she may incur in this action, including copying and/or witness fees.

RECOMMENDED that the Onondaga County Medical Examiner’s Officer be

terminated as a defendant in this action; and it is further

ORDERED that the Clerk serve a copy of this Order and Report-Recommendation,

along with copies of the unpublished decisions cited herein in accordance with Lebron v.

Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam) on Plaintiff.

Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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. 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)); 28 U.S.C. § 636(b)(1)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

IT IS SO ORDERED.

Dated: July 6, 2023

Syracuse, New York ‘ eo ,

Theérése Wiley Dancks

United States Magistrate Judge

® If you are proceeding pro se and are served with this Order and Report-

Recommendation by mail, three additional days will be added to the fourteen-day period,

meaning that you have seventeen days from the date the Order and Report-Recommendation 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. 6(a)(1)(C).

2022 WL 17517312 District before the court may permit the plaintiff to proceed

Only the Westlaw citation is currently available. with this action in forma pauperis. See id.

United States District Court, N.D. New York.

2 To determine whether an action is frivolous, a court

Manetirony CLERVRAIN, Plaintiff, must look to see whether the complaint “lacks an

v. arguable basis either in law or in fact.” Neitzke v.

Jonathan ROBBINS, et al., Defendants. Williams, 490 U.S. 319, 325 (1989).

1:22-CV-1248 (MAD/DJS) Likewise, under 28 U.S.C. § 1915A, a court must review

| any “complaint in a civil action in which a prisoner seeks

Signed December 8, 2022 redress from a governmental entity or officer or employee of

a governmental entity” and must “identify cognizable claims

Attorneys and Law Firms or dismiss the complaint, or any portion of the complaint,

if the complaint ... is frivolous, malicious, or fails to state a

MANETIRONY CLERVRAIN, Plaintiff, Pro Se, Anderson, claim upon which relief may be granted; or ... seeks monetary

IN 46013. relief from a defendant who is immune from such relief.” 28

U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116

(2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636,

REPORT-RECOMMENDATION and ORDER 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A

are available to evaluate pro se prisoner complaints).

DANIEL J. STEWART, United States Magistrate Judge

In reviewing a pro se complaint, the court has a duty to show

*1 The Clerk has forwarded for review what has been

liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d

docketed as a civil complaint filed by Plaintiff. Dkt. No. 1,

605, 606 (2d Cir. 1990) (per curiam), and should exercise

Compl. Plaintiff has not paid the filing fee but has submitted

“extreme caution ... in ordering sua sponte dismissal of a

an application to proceed in forma pauperis (“IFP”), Dkt. No.

pro se complaint before the adverse party has been served

2, which the Court has granted.1

and both parties (but particularly the plaintiff) have had an

opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,

1 Plaintiff has also moved for leave to file 41 (2d Cir. 1983) (internal citations omitted). Therefore, a

electronically. Dkt. No. 3. Given the recommended court should not dismiss a complaint if the plaintiff has stated

disposition of this case, that Motion is denied with “enough facts to state a claim to relief that is plausible on its

leave to renew if Plaintiff files a complaint that face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

survives review under section 1915. “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

I. SUFFICIENCY OF THE COMPLAINT alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

A. Governing Legal Standard

*2 Although a court should construe the factual allegations

28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to in the light most favorable to the plaintiff, “the tenet that

proceed in forma pauperis, “(2) ... the court shall dismiss a court must accept as true all of the allegations contained

the case at any time if the court determines that – ... (B) in a complaint is inapplicable to legal conclusions.” Id.

the action ... (i) is frivolous or malicious; (ii) fails to state a “Threadbare recitals of the elements of a cause of action,

claim on which relief may be granted; or (iii) seeks monetary supported by mere conclusory statements, do not suffice.” Id.

relief against a defendant who is immune from such relief.” 28 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here

U.S.C. § 1915(e)(2)(B).2 Thus, even if a plaintiff meets the the well-pleaded facts do not permit the court to infer more

financial criteria to commence an action in forma pauperis, it than the mere possibility of misconduct, the complaint has

is the court's responsibility to determine whether the plaintiff alleged - but it has not show[n] - that the pleader is entitled

more than an unadorned, the-defendant-unlawfully-harmed- FED. R. CIV. P. 10(b). The purpose of Rule 10 is to “provide

me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell an easy mode of identification for referring to a particular

Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading paragraph in a prior pleading[.]” Sandler v. Capanna, 1992

that only “tenders naked assertions devoid of further factual WL 392597, at *3 (E.D. Pa. Dec. 17, 1992).

enhancement” will not suffice. Id. (internal quotation marks

and alterations omitted). A complaint that fails to comply with basic pleading

requirements presents too heavy a burden for defendants to

craft a defense “and provides no meaningful basis for the

Court to assess the sufficiency of [the plaintiff's] claims,” and

B. Analysis of the Complaint may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352,

355 (N.D.N.Y. 1996).

A court's initial review of a complaint under § 1915(e) must

encompass the applicable standards of the Federal Rules

Plaintiff's Complaint clearly does not satisfy these

of Civil Procedure. Rule 8 of the Federal Rules of Civil

requirements. The nature of the Complaint is unclear. The

Procedure provides that a pleading must contain:

Complaint recites a wide variety of federal statutes and

(1) a short and plain statement of the grounds for the court's case law, but a thorough review of the main Complaint and

jurisdiction ...; the numerous attachments does not provide clarity as to

what federal claim Plaintiff seeks to pursue in this Court.

(2) a short and plain statement of the claim showing that It is unclear what relationship the individuals identified by

the pleader is entitled to relief; and Plaintiff as Defendants have to Plaintiff and how he alleges

they violated his rights.

(3) a demand for the relief sought, which may include relief

in the alternative or different types of relief. Given its lack of clarity, the Complaint is clearly subject to

dismissal. “[A] court should not dismiss a complaint filed

FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give

fair notice of the claim being asserted so as to permit the by a pro se litigant without granting leave to amend at least

adverse party the opportunity to file a responsive answer [and] once ‘when a liberal reading of the complaint gives any

prepare an adequate defense.” Hudson v. Artuz, 1998 WL indication that a valid claim might be stated.’ ” Bruce v.

832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL

Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)). 151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v.

Moreover, Rule 10 of the Federal Rules of Civil Procedure Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Accordingly, the

provides, in part: Court recommends that the Complaint be dismissed, but that

Plaintiff be afforded an opportunity to amend.

*3 The Court advises Plaintiff that should he be permitted

(b) Paragraphs; Separate

to amend his Complaint, any amended pleading she

Statements. A party must state its

submits must comply with Rules 8 and 10 of the Federal

claims or defenses in numbered

Rules of Civil Procedure. Any such amended complaint,

paragraphs, each limited as far

which shall supersede and replace in its entirety the

as practicable to a single set of

previous Complaint filed by Plaintiff, must contain

circumstances. A later pleading may

sequentially numbered paragraphs containing only one

refer by number to a paragraph in an

act of misconduct per paragraph. Thus, if Plaintiff claims

earlier pleading. If doing so would

that his civil and/or constitutional rights were violated by

promote clarity, each claim founded on

more than one defendant, or on more than one occasion,

a separate transaction or occurrence –

he should include a corresponding number of paragraphs

and each defense other than a denial –

in his amended complaint for each such allegation, with

must be stated in a separate count or

each paragraph specifying (i) the alleged act of misconduct;

defense.

(ii) the date, including the year, on which such misconduct

occurred; (iii) the names of each and every individual who

nexus between such misconduct and Plaintiff's civil and/or Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen

constitutional rights. (14)3 days within which to file written objections to the

foregoing report. Such objections shall be filed with the Clerk

Plaintiff is further cautioned that no portion of his prior of the Court. FAILURE TO OBJECT TO THIS REPORT

Complaint shall be incorporated into his amended complaint WITHIN FOURTEEN (14) DAYS WILL PRECLUDE

by reference. Any amended complaint submitted by Plaintiff APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89

must set forth all of the claims he intends to assert against the (2d Cir. 1993) (citing Small v. Sec'y of Health and Human

defendants and must demonstrate that a case or controversy Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §

exists between the Plaintiff and the defendants which Plaintiff 636(b)(1); FED. R. CIV. P. 72 & 6(a).

has a legal right to pursue and over which this Court has

jurisdiction. If Plaintiff is alleging that the named defendant 3 If you are proceeding pro se and are served with

violated a law, he should specifically refer to such law. this Order by mail, three additional days will be

added to the fourteen-day period, meaning that you

have seventeen days from the date the order was

II. CONCLUSION mailed to you to serve and file objections. FED. R.

CIV. P. 6(d). If the last day of that prescribed period

For the reasons stated herein, it is hereby falls on a Saturday, Sunday, or legal holiday, then

the deadline is extended until the end of the next

RECOMMENDED, that Plaintiff's Complaint be day that is not a Saturday, Sunday, or legal holiday.

DISMISSED with leave to amend; and it is FED. R. CIV. P. 6(a)(1)(C).

ORDERED, that the Clerk of the Court serve a copy of this All Citations

Report-Recommendation and Order upon the parties to this

action. Slip Copy, 2022 WL 17517312

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2023 WL 3170384 2007). After the appropriate review, “the court may accept,

Only the Westlaw citation is currently available. reject, or modify, in whole or in part, the findings or

United States District Court, N.D. New York. recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1).

Manetirony CLERVRAIN, Plaintiff,

v. “[I]n a pro se case, the court must view the submissions

Jonathan ROBBINS, Jean-Max Bellerive, by a more lenient standard than that accorded to ‘formal

Josue Pierre-Louis, Garry Conille, Jean-Claude pleadings drafted by lawyers.’ ” Govan v. Campbell, 289

F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.

Theogene, Barthelemy Anteno, Kwasi Amoako-

Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).

Attah, and Victor (Ito) Bisono Haza, Defendants.

The Second Circuit has held that the court is obligated to

1:22-CV-1248 (MAD/DJS) “ ‘make reasonable allowances to protect pro se litigants’ ”

| from inadvertently forfeiting legal rights merely because they

Signed May 1, 2023 lack a legal education. Govan, 289 F. Supp. 2d at 295 (quoting

Taguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

Attorneys and Law Firms

Having reviewed the December 8, 2022 Report-

MANETIRONY CLERVRAIN, 4326 South Scatterfield Recommendation and Order, Plaintiff's complaint and the

Road, Suite 153, Anderson, Indiana 46013, Plaintiff, Pro Se. applicable law, the Court finds that Magistrate Judge Stewart

correctly determined that the complaint should be dismissed.

The complaint is largely incomprehensible and suffers from

ORDER several deficiencies. Rule 8(a) of the Federal Rules of Civil

Procedure provides that a pleading must contain “a short

Mae A. D'Agostino, United States District Judge: and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiff's complaint

*1 On November 22, 2022, pro se Plaintiff Manetirony

is neither short nor plain. See Dkt. No. 1. As currently

Clervrain (“Plaintiff”) filed a complaint against Defendants

drafted, and even with the leniency given to a pro se litigant's

consisting of 70 pages of forms and documents, see Dkt. No.

pleadings, Plaintiff failed to meet pleading standards such

1, “recit[ing] a wide variety of federal statutes and case law,”

that the Court is unable to meaningfully analyze whether

Dkt. No. 7 at 5, and around two hundred pages of attachments.

Plaintiff can allege any colorable claim against Defendants.

See Dkt. Nos. 1-1, 1-5, 1-6. On the same day, Plaintiff moved

See Canning v. Hofmann, No. 1:15-CV-0493, 2015 WL

for leave to proceed in forma pauperis (“IFP”), see Dkt. No.

6690170, *5 (N.D.N.Y. Nov. 2, 2015) (“[H]aving found

2, and to obtain an ECF login and password. See Dkt. No. 3.

that none of the allegations in Plaintiff's meandering and

indecipherable Complaint raise a cognizable cause of action,

On December 8, 2022, Magistrate Judge Daniel J. Stewart

the Court concludes that the Complaint fails to state a claim

granted Plaintiff's motion to proceed IFP. See Dkt.

upon which relief may be granted and is subject to dismissal”)

No. 6. Additionally, Magistrate Judge Stewart issued a

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Report-Recommendation and Order recommending that the

complaint be dismissed with leave to amend. See Dkt.

*2 Finally, the Court agrees with Magistrate Judge Stewart

No. 7. Plaintiff has not filed an objection to the Report-

that Plaintiff should be granted an opportunity to amend

Recommendation and Order.

out of deference to Plaintiff's pro se status. See Nielsen

v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“ ‘Generally,

When a party declines to file objections to a magistrate judge's

leave to amend should be freely given, and a pro se

report-recommendation or files “[g]eneral or conclusory

litigant in particular should be afforded every reasonable

objections or objections which merely recite the same

opportunity to demonstrate that he has a valid claim’ ”)

arguments [presented] to the magistrate judge,” the district

(quotation omitted). Should Plaintiff choose to amend the

court reviews those recommendations for clear error. O'Diah

complaint, the Court urges Plaintiff to review Magistrate

v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y.

and Order thoroughly. See Dkt. No. 7 at 4-6. within thirty (30) days of the date of this Order, the Clerk of

the Court shall enter judgment in Defendants’ favor and close

this case without further order from this Court; and the Court

Accordingly, the Court hereby

further

ORDERS that the Report-Recommendation and Order (Dkt.

No. 7) is ADOPTED in its entirety; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of

this Order on the parties in accordance with the Local Rules.

ORDERS that Plaintiff's complaint (Dkt. No. 1) is

DISMISSED with leave to amend; and the Court further

IT IS SO ORDERED.

ORDERS that Plaintiff shall file his amended complaint All Citations

within thirty (30) days of the date of this Order; and the Court

further Slip Copy, 2023 WL 3170384

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2010 WL 335581

has a policy of failing to investigate criminal complaints

regarding these types of violations if they are filed by pretrial

Pa KeyCite Yellow Flag - Negative Treatment detainees or criminal defendants. The defendants now move,

by Hogan v. County of Lewis, NY. N.D.N.¥., March 8, jointly, for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure. For the reasons set forth

2010 WL 335581 below, defendants’ motion is granted.

Only the Westlaw citation is currently available.

This decision was reviewed by West editorial L FACTS

staff and not assigned editorial enhancements.

The Court has taken the facts set forth below from the

ee oe parties' depositions, affidavits, and exhibits, and from the

“owes defendants' respective Rule 56.1 statements of facts. | Upon

Erwin JACKSON, Plaintiff, consideration of a motion for summary judgment, the Court

Vv. shall construe the facts in the light most favorable to the

COUNTY OF NASSAU, Nassau County non-moving party-here, the plaintiff. See Capobianco v. City

Police Department, and Office of the Nassau of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2001). Unless

County District Attorney, Defendants. otherwise noted, where a party's 56.1 statement or deposition

is cited, that fact is undisputed or the opposing party has

No. 07-CV-245 (JFB)(AKT). pointed to no evidence in the record to contradict it. 2

Jan. 22, 2010. 1 The Court notes that plaintiff failed to file and

Attorneys and Law Firms serve a response to defendant's Local Rule 56.1

Statement of Facts in violation of Local Civil

Erwin Jackson, pro se. Rule 56.1. Generally, a “plaintifff's] failure to

respond or contest the facts set forth by the

Ralph J. Reissman and Sara A. Wells of the Nassau County defendants in their Rule 56.1 statement as being

Attorney's Office, Mineola, NY, for defendants. undisputed constitutes an admission of those facts,

and those facts are accepted as being undisputed.”

Jessamy v. City of New Rochelle, 292 F.Supp.2d

MEMORANDUM AND ORDER 498, 504 (S.D.N.Y.2003) (quoting NAS Elecs.,

Inc. v. Transtech Elecs. PTE Ltd., 262 F.Supp.2d

JOSEPH F. BIANCO, District Judge. 134, 139 (S.D.N.Y.2003)). However, “[a] district

*1 On January 17,2007, pursuant to 42 U.S.C. § 1983, prose court has broad discretion to determine whether

plaintiff Erwin Jackson (“plaintiff’ or “Jackson”) brought this ‘0 overlook a party's failure to comply ee □□

action against defendants County of Nassau (“the County”), □ as od Cin i ‘nate ont, also

Nassau County Police Department, and the Office of the Gilani GNOC Corp., No. 04 Civ. 2935(ILG)

Nassau County District Attorney alleging that defendants 5006 WL 1120602 al #2 (EDN. Apr 56,

violated plaintiffs rights under the First, Fourth, and 2006) (exercising court's discretion to overlook the

Fourteenth Amendments of the United States Constitution. a. .

Specifically, Jackson claims that his constitutional rights Parties failure to submit Statements Pursuant ‘0

were violated during his pretrial proceedings when police Local Civil Rule 96.1). In plaintiff's opposition

officers allegedly withheld exculpatory evidence, made papers, he specifically identified those paragraphs

perjurous statements, and falsely verified felony complaints of defendants’ Rule 56.1 statement with which he

against plaintiff when they had no personalknowledge of the agreed that there were no material disputed □□□□□□

underlying facts. Jackson further contends that the County of fact. The Court, in ts discretion, thus relies on

. we oe those paragraphs as equivalent to plaintiff's Rule

of Nassau has a policy of committing these constitutional 56 .1 statement of facts for the purposes of this

violations. Jackson also alleges that the County of Nassau

given plaintiff's pro se status, the Court will also District Attorney's Criminal Complaint Unit. (Id. ¶ 10.)

only deem admitted those facts in defendant's Rule The complaints were based on Officer Hughes's allegedly

56.1 statement that are supported by admissible inconsistent testimony at a pretrial suppression hearing.

evidence and not controverted by other admissible Jackson alleges that while testifying before the Grand Jury

evidence in the record. See Jessamy, 292 F.Supp.2d in December 2005, Officer Hughes stated that he observed

at 504-05. five black males fleeing a four-door Buick wearing face

masks. During a subsequent pretrial hearing on July 10, 2006,

2

Because plaintiff is pro se, the Court has plaintiff cross-examined Officer Hughes. At that hearing,

independently reviewed plaintiff's deposition Officer Hughes stated that only some of the males he observed

testimony. Plaintiff's deposition contains no were wearing face masks. The testimony at the July 10 pretrial

additional evidence other than plaintiff's hearing was as follows:

speculation and conclusory allegations.

Q: This individual jumps out of the car. This is the

individual that you pursued after?

A. The Underlying Prosecution

A: Correct. * * *

On November 22, 2005, plaintiff Erwin Jackson was arrested

by Nassau County police officers for attempted robbery of Q: Did he have mask on? A: No mask.

the Bank of America located in Baldwin, New York, on

Q: No mask. You testified in the grand jury that all five of

November 21, 2005. (Defs.' 56.1 Statement ¶ 4.) Plaintiff

the occupants of that car that fled had masks on?

was brought to the Bellmore police station, where he

was questioned about the November 21, 2005 robbery. A: I was incorrect about that. I stated that before.

(Deposition of Irwin Jackson, Defs.' Ex. E (hereinafter “Pl.'s

Dep.”) at 32-33.) At the station, Jackson was also questioned Q: That information wasn't true?

about other bank robberies. (Id. at 34-35.) Plaintiff was

arrested and arraigned on November 23, 2005. He was A: It was incorrect. * * *

charged for the November 21 robbery and four additional

Q: You testified they all had masks on. Now, you're saying,

robberies that had occurred in Nassau County on November

you take the mask off one-

13, 2005, October 1, 2005, September 2, 2005, and July 23,

2005. (Id. at 40-41; Defs.' 56.1 Statement ¶ 5.) Plaintiff was A: I believe in that statement. I was describing all the

indicted by a grand jury on thirteen counts on December occupants. I said, they all had masks on. I was incorrect. I

19, 2005. (Pl.'s Dep. at 44-45.) In June 2006, a pretrial should have said, some had masks on.

suppression hearing was held, at which Police Officer Joseph

Hughes testified. (Id. at 45-46.) Plaintiff proceeded to trial (Id. ¶ 12 (citing Ex. AB at 485-86).)

on the charges and, on February 6, 2007, was found guilty

on nine counts of Robbery in the First Degree (New York Jackson also claims Officer Hughes made a “punishable false

Penal Law 160.15) and one count of Conspiracy in the Fourth written statement” and committed the crime of “offering a

Degree (New York Penal Law 105.10). (Id. at 53-54.) On July false instrument for filing” by verifying and signing five

30, 2008, Jackson was sentenced to fifteen years for each of felony complaints against plaintiff, although Officer Hughes

the nine counts of Robbery in the First Degree, plus one year had no personal knowledge of the information contained in

and four months for Conspiracy in the Fourth Degree. (Defs.' those complaints and relied on information provided by other

56.1 ¶ 8.) Jackson's minimum aggregate sentence was set at officers. (Id. ¶¶ 13-14.) According to Jackson, during the

twenty-five years, eight months and sixteen days. (Id. ¶ 9.) pretrial hearing and trial of his co-defendant Paul Henry,

Officer Hughes testified that it was police procedure for

officers to verify and swear to felony complaints even though

they lacked knowledge of the underlying facts or crimes

B. Officer Hughes

alleged therein. (Pl.'s Dep. at 61.) Jackson also alleges that

*2 By letter dated September 17, 2006, while a pretrial Hughes testified to this at Jackson's own trial on cross-

On September 21, 2006, Assistant District Attorney (“ADA”) D. The Instant Complaint

Thurer transferred plaintiff's perjury complaint against

Officer Hughes to ADA Barbara Kornblau, Chief of the Jackson alleges eleven causes of action against the

Public Corruption Bureau. (Id. ¶ 15.) ADA Kornblau County of Nassau and two of its administrative arms,

reviewed plaintiff's complaint against Officer Hughes. the Nassau County District Attorney's Office and the

Because plaintiff's case was still pending and “the issues Nassau County Police Department, arguing that these entities

alleged by plaintiff all pertained to credibility,” (Defs.' had unconstitutional policies, practices, and customs that

Ex. K ¶ 6), ADA Kornblau notified Daniel Looney, the infringed his constitutional rights. Jackson asserts three

ADA prosecuting plaintiff, and plaintiff's attorney, Jeffrey claims specifically against the County of Nassau. First, he

Groder, of plaintiff's claims. The District Attorney's Office alleges that the County had a policy of failing to discipline its

later informed Jackson that it also forwarded the case to employees for any alleged perjury or cover-ups with respect

the Internal Affairs Bureau of the Nassau County Police to evidence. (Compl. at 5; Pl.'s Dep. at 93.) Jackson's second

Department for administrative action at their discretion. cause of action claims that the County has a policy, practice,

(Pl.'s Dep. at 56; Defs.' 56.1 ¶ 16.) After receiving procedure and custom of failing to take steps to terminate

plaintiff's complaint from the District Attorney's Office, the the unconstitutional practices of “its legal subordinates,”

Nassau County Police Department's Internal Affairs Bureau defendants Nassau County Police Department and the Nassau

“determined that plaintiff's complaint against Officer Hughes County District Attorney's Office. (Compl. at 5; Pl.'s Dep. at

for perjury was unfounded, since plaintiff had been convicted 93-94.) Jackson's third cause of action alleges that the County

in a jury trial on February 6, 2007.” (Defs.' 56.1 ¶ 18.) has failed to properly train and supervise its employees

with regard to “the proper constitutional and statutory

requirements in the exercise of their authority.” (Compl. at 5;

C. Detective Comiskey Pl.'s Dep. at 94.)

*3 Jackson also filed criminal complaints against Detective Jackson asserts four claims against the Nassau County

Joseph Comiskey with the Nassau County District Court. Police Department. The fourth cause of action in Jackson's

(Pl.'s Dep. at 58-59.) According to Jackson, Detective complaint alleges that the Nassau County Police Department

Comiskey committed “official misconduct” and perjury has a policy that authorizes subordinates to falsely verify

for allegedly failing to provide plaintiff with “exculpatory and file criminal felony complaints without “knowledge of

material” in July 2006 at a pretrial hearing, and for advising or knowledge based upon belief” of the underlying facts.

the court that he had turned over all of his notes when, (Compl. at 5; Pl.'s Dep. at 95.) The fifth cause of action

according to Jackson, he had not done so. (Defs.' 56.1 alleges that the Nassau County Police Department failed to

¶ 19.) ADA Steven L. Schwartz, Chief of the Nassau properly train and supervise its employees in the processing

County District Attorney's District Court Bureau, investigated of arrestees. (Compl. at 5-6.) Specifically, Jackson contends

these two complaints against Detective Comiskey, and that, due to inadequate training, employees of the Nassau

found the claims in them unfounded. (Id. ¶ 20.) Plaintiff County Police Department do not realize “that they are not

was subsequently informed that the District Attorney's authorized to swear or fill out a felony complaint that they

Office declined to prosecute these complaints. (Id.) These have absolutely no knowledge of.” (Pl.'s Dep. at 96.) The sixth

complaints were also reviewed by ADA Kornblau, who cause of action in Jackson's complaint claims that the Nassau

determined that Detective Comiskey's actions were not a County Police Department has an illegal practice or custom

crime. (Id. ¶ 22.) Subsequently, as she had done with that condones and sanctions its employees who commit

the complaint against Officer Hughes, she forwarded the perjury, which is demonstrated by the fact that plaintiff, a

complaints to the Nassau County Police Department Internal pretrial criminal defendant, attempted to file criminal charges

Affairs Bureau. (Id. ¶ 22.) ADA Kornblau also sent a letter against the defendants' subordinates, but the defendants took

to Jeffrey Groder, plaintiff's trial counsel, informing him of no corrective actions. (Id. at 96-97; Compl. at 6.) Jackson's

plaintiff's allegations, since they pertained to an incident in seventh cause of action alleges that the Nassau County Police

which Groder was involved. (Id.) Department, as a policy maker, has a defective and illegal

policy whereby it does not correct or punish wrongdoings,

and six. (Compl. at 6; Pl.'s Dep. at 97-98.) not filed with the Court until June 11, 2009.

*4 Jackson asserts his four final claims against the Nassau

County District Attorney's Office. Jackson's eighth cause of III. STANDARD OF REVIEW

action alleges that the Nassau County District Attorney's

Office has a history and practice of ignoring criminal The standards for summary judgment are well settled.

defendants' and arrestees' complaints, ignoring evidence of Pursuant to Federal Rule of Civil Procedure 56(c), a court

police misconduct, and shielding police officers and other may not grant a motion for summary judgment unless

assistant district attorneys from prosecution. (Compl. at 6.) “the pleadings, depositions, answers to interrogatories, and

Jackson's ninth cause of action alleges that the Nassau admissions on file, together with affidavits, if any, show that

County District Attorney's Office does not give “any credence there is no genuine issue as to any material fact and that the

to pretrial criminal defendants who seek to file and give moving party is entitled to judgment as a matter of law.”

any credence to pretrial criminal defendants that seek to Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire

commence criminal actions in the court against public Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party

officials.” (Id. at 130.) Specifically, plaintiff contends that bears the burden of showing that he or she is entitled to

the Nassau County District Attorney's Office declines to summary judgment. See Huminski v. Corsones, 396 F.3d 53,

investigate, arrest, and/or prosecute public officials when 69 (2d Cir.2005). The court “is not to weigh the evidence

illegal conduct is alleged by pretrial or criminal defendants. but is instead required to view the evidence in the light

(Compl. at 6-7.) Jackson's tenth cause of action alleges most favorable to the party opposing summary judgment,

that the Nassau County District Attorney's Office has to draw all reasonable inferences in favor of that party, and

failed to punish the illegal practices and wrongdoings of to eschew credibility assessments.” Amnesty Am. v. Town of

their employees and the Nassau County Police Department. W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v.

(Compl. at 7.) Jackson's eleventh and final cause of action Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary

contends that the Nassau County District Attorney's Office judgment is unwarranted if “the evidence is such that a

has a policy and procedure whereby the district court clerk reasonable jury could return a verdict for the nonmoving

does not submit or file any claims or complaints against a party”).

public official made by criminal defendants. (Compl. at 7.)

*5 Once the moving party has met its burden, the opposing

party “ ‘must do more than simply show that there is

some metaphysical doubt as to the material facts.... [T]he

II. PROCEDURAL HISTORY

nonmoving party must come forward with specific facts

Jackson filed the complaint in this action on January 17, showing that there is a genuine issue for trial.’ “ Caldarola

2007. The Court granted plaintiff leave to proceed in forma v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting

pauperis on January 31, 2007. Defendants filed an answer Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

to the complaint on May 23, 2007. On March 14, 2008, U.S. 574, 586-87 (1986) (emphasis in original)). As the

plaintiff filed a motion to amend the complaint. This Court Supreme Court stated in Anderson, “[i]f the evidence is

denied that motion on February 13, 2009. On May 15, 2009, merely colorable, or is not significantly probative, summary

defendants submitted their motion for summary judgment judgment may be granted.” Anderson, 477 U.S. at 249-50

and provided pro se plaintiff with the notice required by (citations omitted). Indeed, “the mere existence of some

Local Civil Rule 56.2. Defendant submitted supplemental alleged factual dispute between the parties” alone will not

papers to their motion on June 5, 2009. Plaintiff submitted defeat a properly supported motion for summary judgment.

opposition papers on May 28, 2009.3 Defendants filed their Id. at 247-48 (emphasis in original). Thus, the nonmoving

party may not rest upon mere conclusory allegations or

reply to plaintiff's opposition on June 5, 2009. Plaintiff also

denials but must set forth “ ‘concrete particulars' “ showing

submitted a motion for sanctions against defendants on June

that a trial is needed. R.G. Group, Inc. v. Horn & Hardart

10, 2009. Defendants submitted their opposition to the motion

Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v.

for sanctions on June 11, 2009. This matter is fully submitted.

Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)).

Accordingly, it is insufficient for a party opposing summary

supporting arguments or facts.’ “ BellSouth Telecomms., Inc. York.” (citations omitted)). Plaintiff's allegations against the

v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Police Department are more properly raised in claims against

Research Automation Corp., 585 F.2d at 33). Nassau County, which plaintiff has also brought in his first,

second, and third causes of action. Accordingly, the Nassau

Where the plaintiff is proceeding pro se, the Court must County Police Department is dismissed as a defendant.

“construe [the complaint] broadly, and interpret [it] to raise

the strongest arguments that [it] suggest[s].” Weixel v. Bd. of *6 For the same reason, plaintiff cannot bring claims against

Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir.2002) the Nassau County District Attorney's Office. See Conte v.

(alterations in original) (quoting Cruz v. Gomez, 202 F.3d 593, County of Nassau, No. 06-CV-4746 (JFB)(ETB), 2008 WL

597 (2d Cir.2000)). Though a pro se litigant's pleadings and 905879, at *1 n. 2 (E.D .N.Y. Mar. 31, 2008) (dismissing

other submissions are afforded wide latitude, a pro se party's Section 1983 claims against the Nassau County District

conclusory assertions, completely unsupported by evidence, Attorneys Office because the entity is an “ ‘administrative

are not sufficient to defeat a motion for summary judgment. arm[ ]’ of the same municipal entity-the County ... and thus

Shah v. Kuwait Airways Corp., --- F.Supp.2d ----, No. 08 lack[s] the capacity to be sued”). Plaintiff's allegations against

Civ. 7371(GEL), 2009 WL 2877604, at *2 (S.D.N.Y. Sept. 9, the District Attorneys Office are more properly brought

2009) (“Even a pro se party, however, ‘may not rely simply as claims against Nassau County. Plaintiff has brought

on conclusory allegations or speculation to avoid summary substantially the same claims against the District Attorney's

judgment, but instead must offer evidence to show that its Office as he has brought against the County of Nassau.

version of the events is not wholly fanciful.’ “ (quoting Accordingly, the Nassau Count District Attorney's Office is

Auguste v. N.Y. Presbyterian Med. Ctr., 593 F.Supp.2d 659, dismissed as a defendant in this case.4 Because the plaintiff

663 (S.D.N.Y.2009))). is proceeding pro se, the Court, in its discretion, does not

dismiss plaintiff's fourth through eleventh causes of action

in their entirety, but rather construes those claims, which are

IV. DISCUSSION largely duplicative of causes of action one through three, as

against the County of Nassau.

A. Proper Defendants 4 The Court further notes that it has previously

Plaintiff alleges specific causes of action against the Nassau denied plaintiff's attempt to amend his complaint

County Police Department and Nassau County District to state claims against Lawrence Mulvey, the

Attorney's Office as defendants. However, “under New Commissioner of the Nassau County Police

York law, departments that are merely administrative arms Department, and Kathleen Rice, the Nassau County

of a municipality do not have a legal identity separate District Attorney. See Jackson v. County of Nassau,

and apart from the municipality and, therefore, cannot No. 07-CV-0245 (JFB)(AKT), 2009 WL 393640

sue or be sued.” See Davis v. Lynbrook Police Dep't, (E.D.N.Y. Feb. 13, 2009).

224 F.Supp.2d 463, 477 (E.D.N.Y.2002) (dismissing claim

against Lynbrook Police Department); see also Hall v. City

of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002) B. Section 1983 Liability

(“Because plaintiff has named the City of White Plains as a

As stated supra, Jackson has brought his claims pursuant

defendant, any claims against the [White Plains Department

to Section 1983. Section 1983 “is not itself a source of

of Public Safety] are redundant. WPDPS does not have its

substantive rights, but a method for vindicating federal rights

own legal identity, and therefore the claims against it are

elsewhere conferred by those parts of the United States

dismissed.”); Polite v. Town of Clarkstown, 60 F.Supp.2d

Constitution and federal statutes that it describes.” Baker v.

214, 216 (S.D.N.Y.1999) (“[M]unicipal departments in this

State-such as the Clarkstown Police Department-are not

McCollan, 443 U.S. 137, 145 n. 3 (1979).5 For claims under

amenable to suit, and no claims can lie directly against Section 1983, a plaintiff must prove that “(1) the challenged

them.”); Wilson v. City of New York, 800 F.Supp. 1098, 1101 conduct was attributable at least in part to a person who was

(E.D.N.Y.1992) (“The court also dismisses the claims against acting under color of state law and (2) the conduct deprived

Cir.1999) (citation omitted). Here, the parties do not dispute or custom of the County of Nassau and, thus, his municipal

that defendants were acting under color of state law. The liability claims against the County cannot survive summary

question presented, therefore, is whether defendants' conduct judgment.

deprived Jackson of the rights he asserts.

5 Specifically, Section 1983 provides as follows: (1) Plaintiff Cannot Demonstrate

Every person who, under color of any statute, Violation of His Constitutional Rights

ordinance, regulation, custom, or usage, of

any State or Territory or the District of *7 To bring a successful Section 1983 claim, plaintiff

Columbia, subjects, or causes to be subjected, must first demonstrate that he was injured as a result

any citizen of the United States or other of a constitutional violation. In the instant case, plaintiff

person within the jurisdiction thereof to cannot do so. First, Supreme Court precedent prevents a

the deprivation of any rights, privileges, or prisoner, like Jackson, from bringing a Section 1983 claim

immunities secured by the Constitution and where success on the claim necessarily would implicate the

laws, shall be liable to the party injured in an unconstitutionality of the prisoner's conviction or sentence.

action at law.... Second, even assuming this rule did not apply, plaintiff has

42 U.S.C. § 1983. presented no evidence of any constitutional violations relating

to his conviction.

Although pro se plaintiff alleges eleven separate causes of

action against the County of Nassau and its administrative

arms, at core, the claims alleged by plaintiff in his complaint

are as follows: (1) the County of Nassau has a policy or a. Heck v. Humphrey

practice of permitting its employees (or employees of its

As a threshold matter, although not explicitly raised by

administrative arms) to commit perjury and a policy or

defendants, plaintiff's claims fail as a matter of law, by virtue

practice of failing to discipline its employees who do commit

of his conviction. Specifically, the Supreme Court's decision

perjury; (2) the County of Nassau has a policy or practice

of permitting its police officers to falsely verify criminal in Heck v. Humphrey, 512 U.S. 477 (1994), entitles defendants

complaints; and (3) the County of Nassau has a policy of to a decision in their favor as a matter of law with respect to

not investigating, responding to, or prosecuting complaints or these claims.

cross-criminal complaints of pretrial detainees and criminal

defendants that allege crimes and misconduct against police

officers and assistant district attorneys. (Plaintiff's Opposition i. The Heck Rule

(hereinafter “Opp.”) at 14.)

In Heck v. Humphrey, the Supreme Court “confronted the

Defendants argue that they are entitled to summary judgment question of whether, given the overlap between § 1983 and

on the grounds that Jackson has failed to provide any the federal habeas corpus statute, a prisoner seeking civil

evidence that would raise a genuine issue of fact as to damages may proceed with a § 1983 claim where success on

municipal liability for any of these claims. As set forth below, the claim necessarily would implicate the unconstitutionality

the Court agrees. First, plaintiff has failed to provide any of the prisoner's conviction or sentence.” Amaker v. Weiner,

evidence that there was an underlying constitutional violation 179 F.3d 48, 51 (2d Cir.1999) (citing Heck, 512 U.S. at

with respect to his arrest and conviction, which would be 480-90). The Supreme Court in that case explained:

a necessary element of any municipal liability claim. In

fact, under well-settled Supreme Court and Second Circuit

precedent, plaintiff's valid conviction precludes him from We hold that, in order to recover

litigating any of his claims in the instant case because success damages for allegedly unconstitutional

on such claims (that is, demonstrating his constitutional conviction or imprisonment, or for

rights were violated in connection with the investigation other harm caused by actions

and prosecution of his case) would necessarily implicate the whose unlawfulness would render

the conviction or sentence has been (S.D.N.Y. Aug. 17, 2006) (applying Heck to a Section 1983

reversed on direct appeal, expunged by claim for denial of the right to a fair trial in the context of a

executive order, declared invalid by a statute of limitations issue).

state tribunal authorized to make such

determination, or called into question

by a federal court's issuance of a writ

ii. Application

of habeas corpus, 28 U.S.C. § 2254.

A claim for damages bearing that *8 Here, as stated supra, Jackson was convicted after a

relationship to a conviction or sentence trial in state court of nine counts of Robbery in the First

that has not been so invalidated is Degree and one count of Conspiracy in the Fourth Degree on

not cognizable under § 1983. Thus, July 30, 2008. It is apparent that Jackson is still incarcerated

when a state prisoner seeks damages for this conviction and, to date, has been unsuccessful in

in a § 1983 suit, the district court challenging his conviction or has not even attempted to

must consider whether a judgment in do so. Under these circumstances, the Supreme Court's

favor of the plaintiff would necessarily holding in Heck precludes plaintiff from bringing claims

imply the invalidity of his conviction in this Court under Section 1983 for municipal liability,

or sentence; if it would, the complaint because a plaintiff bringing such claims must demonstrate a

must be dismissed unless the plaintiff constitutional violation in connection with his conviction, and

can demonstrate that the conviction or a successful result in this case on any one of plaintiff's claims

sentence has already been invalidated. would bear on the validity of that underlying conviction.

Indeed, Heck' s application to the instant matter is

512 U.S. at 486-87 (footnote omitted) (emphasis in original); straightforward. Plaintiff's complaint claims that he was

see also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) “subsequently indicted based upon officer Hughes['s]

(“Heck specifies that a prisoner cannot use § 1983 to ‘inaccurate’ testimony.” (Compl.¶ 9.) Plaintiff also contends

obtain damages where success would necessarily imply the that during his pretrial hearings there was extensive “late

unlawfulness of a (not previously invalidated) conviction or disclosure of [exculpatory] material.” (Id. ¶ 11.) Although it is

sentence.” (emphasis in original)). true that not all claims brought under Section 1983 necessarily

implicate the validity of the underlying conviction, in this

Thus, pursuant to Heck, courts routinely dismiss claims case, plaintiff's assertions of perjury, withheld evidence, and

brought under Section 1983 when such claims bear on the falsely sworn documents during his trial by police officers

validity of an underlying conviction or sentence. See, e.g., do necessarily implicate the validity of his conviction and

Guerrero v. Gates, 442 F.3d 697, 703-04 (9th Cir.2006) are thus barred by the Heck rule.6 See, e.g., McCloud v.

(holding that Heck bars plaintiff's § 1983 claims of wrongful Jackson, 4 F. App'x 7, 10 (2d Cir.2001) (“[Plaintiff] could not

arrest, malicious prosecution, and conspiracy); Amaker, 179 assert [municipal liability] claims under § 1983 against the

F.3d at 51-52 (holding that Heck applies to Section 1983 county defendants for holding him in jail because any claim

conspiracy); Perez v. Cuomo, No. 09 Civ. 1109(SLT), 2009 for money damages which, as here, necessarily imputes the

WL 1046137, at *7 (E.D.N.Y. Apr. 17, 2009) (“A § 1983 invalidity of a conviction, is barred under Heck v. Humphrey,

claim for the violation of the due process right to a fair 512 U.S. 477, 484, 486-87 (1994), until such time as the

trial is, in essence, a claim for damages attributable to conviction is vacated or otherwise invalidated.”); Channer

an unconstitutional conviction.... Since plaintiff's conviction v. Mitchell, 43 F.3d 786, 787-88 (2d Cir.1994) (per curiam)

remains valid, plaintiff's claim for violation of his right to (affirming Heck-based dismissal of claim that police officers

a fair trial is not cognizable under § 1983, and must be committed perjury and coerced witnesses to identify plaintiff

dismissed as to all defendants[.]”) (internal quotation marks wrongfully); Williams v. Schario, 93 F.3d 527, 529 (8th

and citations omitted); Younger v. City of N.Y., 480 F.Supp.2d Cir.1996) (“[A] judgment in Williams's favor on his damages

723, 730 (S.D.N.Y.2007) (holding that plaintiff's claims for claim that defendants engaged in malicious prosecution and

false arrest/imprisonment and malicious prosecution were presented perjured testimony would ‘necessarily imply the

barred by his plea of guilty pursuant to Heck); cf. Jovanovic

(9th Cir.1996) (per curiam) (affirming Heck-based dismissal County of Nassau in his Section 1983 action under any of

of § 1983 claim of conspiracy to “bring unfounded criminal these theories, a plaintiff must plead and prove: (1) there

charges” against plaintiff); Jasper v. Fourth Court of Appeals, was an official municipal policy or custom; and (2) that

No. 08 Civ. 7472(LAP), 2009 WL 1383529, at *1 (S.D.N.Y. policy or custom caused him to be subjected to a denial of

May 18, 2009) (“The Court liberally construes this complaint a constitutional right. See Monell v. Dep't Soc. Servs., 436

as asserting that plaintiff was denied his constitutional right U.S. 658, 690-91 (1978). There must be a “direct causal link”

to a fair trial. [However, s]ince plaintiff's conviction remains between the alleged municipal action and the deprivation

valid, plaintiff's fair trial claim is not cognizable under § 1983, of the plaintiff's constitutional rights. City of Canton, Ohio

and it must be dismissed as to all defendants[.]”); Perez, 2009 v. Harris, 489 U.S. 378, 385 (1989); Vippolis v. Vill. of

WL 1046137, at *7 (“A § 1983 claim for the violation of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985); see also Lynch

the due process right to a fair trial is, in essence, a claim v. Suffolk County Police Dep't, No. 07-3684-cv, 2009 WL

for damages attributable to an unconstitutional conviction.... 3287565, at *2 (2d Cir. Oct. 14, 2009) (“In order to prevail on

Since plaintiff's conviction remains valid, plaintiff's claim for a claim against a municipality under Monell, a plaintiff must

violation of his right to a fair trial is not cognizable under allege, among other things, that a ‘municipal policy of some

§ 1983, and must be dismissed as to all defendants[ .]”) nature caused a constitutional tort.’ “ (citations omitted)).

(internal quotation marks and citations omitted); Fernandez In the instant case, because the Court finds as a matter of

v.. Holzbach, No. 3:04 Civ. 1664(RNC), 2007 WL 1467182, law on summary judgment that Heck v. Humphrey prevents a

at *1 (D.Conn. May 15, 2007) (holding that plaintiff's finding that a constitutional violation was committed against

allegations that his convictions were based on perjury and plaintiff by any of the defendants, see supra, no Monell

fabricated evidence pursuant to a conspiracy to violate his claim can lie against the County of Nassau pursuant to §

federal rights “necessarily impl[ied] that he was wrongly 1983.7 See, e.g., Lynch, 2009 WL 3287565, at *2 (“Insofar as

convicted” and could not be litigated “until he show[ed] that plaintiff alleges that a municipal policy caused prosecutorial

the convictions have been invalidated”); Duamutef v. Morris, misconduct in the trial that led to his felony convictions,

956 F.Supp. 1112, 1115-16 (S.D.N.Y.1997) (dismissing § plaintiff's claim seeks to ‘recover damages for [an] allegedly

1983 claims for, inter alia, malicious prosecution, false arrest, unconstitutional conviction or imprisonment’ and is barred by

and perjury during trial due to a failure to state a claim under Heck, 51 U.S. at 486.” (alteration in original)); Segal v. City

Heck because of the valid underlying criminal conviction). of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (“Because the district

Thus, in order to bring a cognizable Section 1983 claim in this court properly found no underlying constitutional violation,

Court for the harms alleged, plaintiff must first establish the its decision not to address the municipal defendants' liability

invalidity of his state court conviction. under Monell was entirely correct.”); accord Vippolis, 768

F.2d at 44 (“A plaintiff who seeks to hold a municipality

6 With respect to plaintiff's claim that the County liable in damages under section 1983 must prove that the

of Nassau has a policy of declining to investigate municipality was, in the language of the statute, the ‘person

criminal complaints filed by pretrial detainees and who ... subjected, or cause[d][him] to be subjected,’ to the

criminal defendants, as discussed infra, plaintiff deprivation of his constitutional rights.” (citing 42 U.S.C. §

has failed to present any evidence that his 1983)); see also Ewolski v. City of Brunswick, 287 F.3d 492,

claim was not investigated, whereas the County 516 (6th Cir.2002) (“Having concluded that the Appellant has

has presented substantial evidence demonstrating not shown a genuine issue of material fact as to any of the

that plaintiff's claim was, in fact, investigated. asserted constitutional claims, we therefore conclude that the

Moreover, the prosecution of plaintiff's criminal district court correctly dismissed the Appellant's municipal

complaints against Officer Hughes and Detective liability claims.”).

Comiskey would have implicated the validity of

his underlying conviction, in contravention of the 7 In any event, summary judgment would also

Heck rule. Accordingly, Heck can be construed to be warranted in favor of the County of Nassau

preclude all of plaintiff's Section 1983 claims. because, as discussed infra, plaintiff has failed

*9 The fact that plaintiff is seeking to assert municipal to proffer any evidence of a policy, custom, or

liability claims against the County of Nassau, rather than

violation. all pertained to credibility, I notified Daniel Looney, the

In sum, even accepting plaintiff's allegations as true and Assistant District Attorney assigned to Jackson's prosecution,

drawing all reasonable inferences in plaintiff's favor, the as well as defense counsel, Jeffrey Groder, of Jackson's

Court finds that plaintiff cannot successfully bring a claim claims. I also forwarded Jackson's complaint to the Internal

Affairs Bureau of the Nassau County Police Department for

because the Heck rule, as a matter of law, prevents plaintiff

whatever administrative action they deemed necessary.”).)

from demonstrating a violation of his constitutional rights,

In a separate affidavit, ADA Steven L. Schwartz, Bureau

which is a necessary predicate to any municipal liability claim

Chief of the District Court Trial Bureau in the Nassau

pursuant to Section 1983.

County District Attorney's Office, states that he personally

investigated plaintiff's proposed accusatory instruments and

found them to be unfounded; accordingly, they were not

b. No Evidence of Violation of prosecuted. (Defs.' Ex. Q ¶ 9.)8

Plaintiff's Constitutional Rights

*10 Moreover, even assuming that the validity of plaintiff's 8 The Court further notes that in the absence of

underlying conviction was not implicated by his claim any evidence that the Nassau County District

that the County of Nassau had a policy of ignoring Attorney's Office failed to investigate Jackson's

criminal complaints filed by pretrial detainees and criminal complaints, the decision not to prosecute those

defendants, he has presented no evidence to support his complaints is protected by prosecutorial immunity.

contention that the County did not investigate his claims. See, e.g., Fields v. Soloff, 920 F.2d 1114, 1119

Thus, because there is no evidence from which a rational jury (2d Cir.1990) (“[U]nless a prosecutor proceeds

could find a violation of his constitutional rights, there is no in the clear absence of all jurisdiction, absolute

predicate for his municipal liability claim. immunity exists for those prosecutorial activities

intimately associated with the judicial phase of

The only forms of evidence offered by plaintiff on this the criminal process.... This protection extends to

issue are his bald assertions and the fact that the County the decision to prosecute as well as the decision

did not prosecute Officer Hughes or Detective Comiskey not to prosecute.” (internal quotations and citations

for their alleged misconduct in relation to plaintiff's trial. omitted)).

Plaintiff's exhibits consist merely of copies of the letters and

Here, as in Staley v. Grady, 371 F.Supp.2d 411

complaints that he filed with Nassau County entities. Plaintiff

(S.D.N.Y.2005), “[s]imply because defendants disagreed with

presents no evidence to contradict the evidence put forth

plaintiff as to the merits of the proposed [complaint] and

by defendants, which demonstrates that plaintiff's complaints

chose not to prosecute the same, does not give rise to an

were investigated. In two affidavits submitted by ADA

equal protection violation.” Id. at 417. Here, too, the Nassau

Kornblau, former Bureau Chief of the District Attorney's

County District Attorney's Office received Jackson's criminal

Public Corruption Bureau, she asserts that she personally

complaints, reviewed and investigated them, and declined to

investigated plaintiff's complaints against the officers. (See

prosecute them based upon the conclusion that the complaints

Defs.' Exs. K, X.) According to ADA Kornblau's affidavit,

were without merit. (See Defs.' Exs. K, Q.)

upon investigating Jackson's complaints, “[it] was clear

from the minutes that [Jackson's] criminal attorney raised

*11 In short, due to plaintiff's inability to set forth any

the issue of the failure to turn over Rosario material to

evidence from which a rational jury could find a deprivation

the trial court, which is the proper venue for such an

of his constitutional rights, plaintiff's Monell claims against

allegation.” (Defs.' Ex. K ¶ 4.) Subsequently, ADA Kornblau

the County of Nassau cannot survive summary judgment.

determined that the remainder of plaintiff's claims were

unfounded, and declined to prosecute the matter. (See id. ¶

4 (“Subsequent to reviewing Jackson's complaint and after

determining that the [complaint] did not allege conduct which (2) Plaintiff Has Set Forth No

constituted a crime, I referred the matter to the Internal Evidence to Support a Monell Claim

Affairs Bureau of the Nassau County Police Department ....”);

to create a genuine issue of fact on whether his constitutional ii. Application

rights were violated, his municipal liability claims still cannot

survive summary judgment because there is no evidence of a Even if plaintiff could prove that his constitutional rights

policy, practice or custom to support a finding by a rational were violated, whether at trial or by the subsequent failure to

jury of municipal liability under Monell. prosecute his criminal complaint for the actions by municipal

actors at his trial, this is not sufficient to demonstrate a

policy or custom by the County of Nassau. “[A] single

i. Applicable Standard incident alleged in a complaint, especially if it involved only

actors below the policy-making level, does not suffice to

Municipalities cannot be held vicariously liable for the actions show a municipal policy.” Ricciuti, 941 F.2d at 123; see

of an employee under § 1983. Monell, 463 U.S. at 691 also Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)

(“[A] municipality cannot be held liable solely because (“Proof of a single incident of unconstitutional activity is

it employs a tortfeasor-or, in other words, a muncipality not sufficient to impose liability under Monell, unless proof

cannot be held liable under § 1983 on a respondeat superior of the incident includes proof that it was caused by an

theory.”). Thus, “[a] municipality will not be held liable existing, unconstitutional municipal policy, which policy can

under Section 1983 unless the plaintiff can demonstrate be attributed to a municipal policymaker.”); McAllister v.

that the allegedly unconstitutional action of an individual N.Y.C. Police Dep't, 49 F.Supp.2d 688, 706 (S.D.N.Y.1999)

law enforcement official was taken pursuant to a policy (same); Palmer v. City of Yonkers, 22 F.Supp.2d 283, 290

or custom ‘officially adopted and promulgated by that (S.D.N.Y.1998) (“[T]he court will not infer the existence of

[municipality's] officers.’ “ Abreu v. City of N.Y., No. 04- a municipal policy from a single incident.”). As discussed

CV-1721 (JBW), 2006 U.S. Dist. LEXIS 6505, at *11 supra, “ ‘the mere assertion ... that a municipality has such a

(E.D.N.Y. Feb. 22, 2006) (quoting Monell, 436 U.S. at custom or policy is insufficient in the absence of allegations

690) (alteration in original). “ ‘[M]unicipal liability under of fact tending to support, at least circumstantially, such an

§ 1983 attaches where-and only where-a deliberate choice inference.’ “ Zahra, 48 F.3d at 685 (quoting Dwares, 985 F.2d

to follow a course of action is made from among various at 100).9

alternatives' by city policymakers .” City of Canton, 489

U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 9 Plaintiff contends that the persons who violated

483-84 (1986)). Thus, an individual's misconduct will not

his constitutional rights were policymakers. (Opp.

result in respondeat superior liability for his supervisors

at 14 (“All of plaintiff's claims were made

absent specific allegations that he acted pursuant to an official

against the ‘policy makers' and not against

policy or custom. Ricciuti v. N.Y.C. Transit A uth ., 941 F.2d

employees below the policy making level.”).) First,

119, 123 (2d Cir.1991). However, “[a] court may draw the

as discussed supra, plaintiff's claims regarding

inference of the existence of a policy or custom ‘when a

alleged perjury, withholding of evidence, or

plaintiff presents evidence that a municipality so failed to train

falsely verified complaints relating to his trial are

its employees as to display a deliberate indifference to the

barred by Heck. In addition, however, plaintiff

constitutional rights of those within its jurisdiction.’ “ Caidor

presents no evidence in support of this argument.

v. M & T Bank, No. 05-CV-297 (FSJ), 2006 U.S. Dist. LEXIS

Moreover, for purposes of plaintiff's causes of

22980, at *35-36 (N.D.N.Y. Mar. 27, 2006) (quoting Grifin-

action regarding the failure to investigate his

Nolan v. Providence Wash. Ins. Co., No. 04-CV-1453 (FJS),

criminal complaints against those persons, plaintiff

2005 U.S. Dist. LEXIS 12902, at *10 (N.D.N.Y. June 20,

would need to allege that the persons who

2005) (quotation omitted)). But, “ ‘the mere assertion ... that

allegedly failed to investigate his accusations were

a municipality has such a custom or policy is insufficient

policymakers. Plaintiff does not do so. Instead,

in the absence of allegations of fact tending to support, at

he acknowledges that the policy maker is District

least circumstantially, such an inference.’ “ Zahra v. Town of

Attorney Kathleen Rice, and the individuals who

Southold, 48 F.3d 674, 685 (2d Cir.1995) (quoting Dwares v.

submitted the defendants' supporting affidavits-

City of N.Y., 985 F.2d 94, 100 (2d Cir.1993)).

those who investigated plaintiff's allegations-are

subordinates to the policy maker. (Opp. at 15.)

this Court declines to add District Attorney detailed, and that there was no record of any investigation

Rice as a defendant in this action. See Jackson, having been conducted by [County Defendants] in regards to

2009 WL 393640, at *3-5. In light of Jackson's the [complaints]”). Plaintiff has presented no actual evidence

repeated argument that the actions of the Nassau of a policy or custom whereby the County would decline

County District Attorney's Office's and Nassau to review the criminal complaints of pretrial detainees or

County Police Department's actions were part criminal defendants.

of a policy, procedure, or custom, the Court

interprets his complaint and opposition papers to The County of Nassau, however, has put forward extensive

argue municipal liability based only on a theory evidence regarding the policies that it has in place to

of municipal policy, procedure, or custom, and review criminal complaints filed by all citizens. In two

not on a theory of unconstitutional action by a separate affidavits, ADA Kornblau affirms that the County

policymaker. does investigate criminal complaints against police officers

and ADAs-including those made by pretrial and criminal

*12 Plaintiff's complaint, statements at his deposition,

defendants: “[M]any of the [District Attorney's Public

and opposition papers to defendants' motion for summary

Corruptions Bureau's] cases are referred from members of

judgment contain vague allegations regarding the existence

the public, including direct complaints of police misconduct

of a policy or procedure by the County of Nassau of

that the Bureau receives from defendants and/or their

refusing to investigate criminal complaints of pretrial

attorneys.” (Defs.' Ex. X. ¶ 5.) Similarly, “[t]o facilitate

detainees and criminal defendants. (E.g., Opp. at 5-6

the investigation into complaints by incarcerated individuals

(“Plaintiff also stated that he never received any response

including pretrial detainees, the Public Corruption Bureau

or letters of acknowledgment from either office though

maintains a hotline in the Nassau County Correctional Center

he wrote numerous letters inquiring about the status of

for the purpose of allowing inmates to file complaints

his complaints and criminal charges.”); Opp. at 6 (“The

directly with the Public Corruption Bureau, without having

complaints were never investigated and plaintiff never

to have their complaints reviewed first by any other entity,

received any response.”); Opp. at 7 (“During the deposition

agency, or person.” (Id.) Moreover, ADA Kornblau's affidavit

plaintiff continuously testified to the fact that no one

states that “[e]ach criminal complaint is afforded individual

ever investigated nor responded to his complaints and

attention and investigation ... [and if] after investigation,

grievances.”).) These conclusory allegations as to the

it is determined that a complaint is supported by credible

existence of a policy or custom are insufficient to withstand

evidence, the Nassau County District Attorney's Public

summary judgment. See Bishop v. Toys “R” Us-NY, LLC,

Corruption Bureau will recommend prosecution, after which

No. 04 Civ. 9403(PKC), 2009 WL 440434, at *4 (S.D.N.Y.

those cases will be prosecuted in criminal court.” (Id. ¶¶ 6-7.).

Feb. 19, 2009) (“[P]roceeding pro se does not otherwise

releive a litigant from the usual requirements of summary

judgment, and a pro se party's ‘bald assertion,’ completely

*13 The County of Nassau has also submitted evidence that

the system utilized by the Nassau County District Attorney's

unsupported by evidence, is not sufficient to overcome a

Office for examining criminal complaints filed by private

motion for summary judgment.” (quoting Carey v. Crescenzi,

citizens does not differentiate between complaints based

923 F.2d 18, 21 (2d Cir.1995)). Indeed, mere “conclusory

on the individual who files the complaint. ADA Kornblau

statements, conjecture, or speculation by the party resisting

explains that:

the motion will not defeat summary judgment.” Id . (citing

Matsushita, 475 U.S. 574, 587 (1986)); Order, McCrary v.

County of Nassau, No. 06 CV 4982(SJF)(ARL) (E.D.N.Y.

Sept. 22, 2008) (“Magistrate Judge Lindsay properly found Complaints are retrieved from within

that [p]laintiff had proffered no evidence to support his the computerized complaint system in

assertion that a custom, policy and/or practice, which one of three ways: (1) a complainant's

precludes the consideration of criminal charges brought name; (2) a defendant's name; or, (3) a

by an accused against police officers and assistant district complaint number. Therefore, there is

attorneys, existed” when plaintiff merely asserted that a police no way to retrieve criminal complaints

officer was “aware of alleged police misconduct regarding made specifically by pretrial detainees

from within the computer complaint

into the system without complainant with respect to allegations of

classification (e.g., civilian, pretrial an assistant district attorney's or

detainee, police officer, etc.). police officer's criminal conduct,

such allegations are individually

investigated and if appropriate, are

(Id. ¶ 8; see also Defs.' 56.1 ¶ 47; Defs.' Ex. W ¶ 11.) In forwarded to the Nassau County

plaintiff's opposition papers, he stated that he did not dispute District Attorney's Office Public

these facts. (Opp. at 12.) Corruption Bureau.

The County of Nassau also submitted an affidavit from

ADA Warren Thurer, the Bureau Chief of the Nassau *14 (Defs.' Ex. Q ¶¶ 7-8.) Plaintiff has presented no evidence

County Criminal Complaint Unit. According to ADA to contradict the information contained in these affidavits or

Thurer, “[s]pecifically with respect to allegations of an to suggest otherwise.

assistant district attorney's or police officer's criminal

conduct, such allegations will be individually investigated Nor has plaintiff presented evidence of a policy or custom

and if appropriate, will be forwarded to the Public of committing perjury, withholding evidence, or falsely

Corruption Bureau of the Nassau County District Attorney's verifying criminal complaints. Plaintiff has merely asserted

Office.” (Defs.' Ex. W ¶ 10; see also Defs' Ex. Q ¶ 10 (“There that “he can testify based upon personal knowledge to the

is no policy, practice, or custom within the Nassau County undisputed facts and that he has credible witnesses and

District Attorney's Office that precludes the consideration, documental evidence to support said factual claims.” (Opp. at

investigation, and/or acceptance of criminal cross-complaints 11.) Plaintiff has not alleged with specificity other instances

brought by an accused against police officers and/or assistant of perjury, withheld evidence, or falsified complaints, nor

district attorneys based upon the status of the complainant as has he presented any other evidence of police officers'

a pretrial detainee”).) An affidavit provided by ADA Steven commission of perjury, withholding of evidence, or filing of

L. Schwartz, Bureau Chief of the District Court Trial Bureau falsely sworn complaints. The County of Nassau, by contrast,

in the Nassau County District Attorney's Office, states that: has put forward evidence regarding its arrest processing

procedures and arrest records. (See Defs.' Ex. Z.) Nowhere

in the County's arrest policies is false verification of criminal

All proposed accusatory instruments complaints, withholding of evidence, or perjury authorized.

are given individual attention and Furthermore, the “collective knowledge doctrine” or “fellow

investigation. There is no distinction officer rule” permits arresting officers to rely upon other

made for the status of the complainant law enforcement officers' knowledge to justify probable

and pretrial detainees are not treated cause to arrest. See Savino v. City of New York, 331 F.3d

any differently than other individuals 63, 74 (2d Cir.2003) ( [F]or the purpose of determining

proposing accusatory instruments to whether an arresting officer had probable cause to arrest,

be filed. Each proposed accusatory ‘where law enforcement authorities are cooperating in an

instrument is investigated for possible investigation, ... the knowledge of one is presumed shared by

criminalityand, if appropriate, any all.’ ”); Stokes v. City of New York, No 05-CV-0007 (JFB)

case may be forwarded and assigned (MDG), 2007 U.S. Dist. LEXIS 32787, at *17 (E.D.N.Y.

to one of the investigative bureaus May 3, 2007) (“[U]nder the collective knowledge doctrine,

within the District Attorney's Office, defendant Buskey is permitted to rely on knowledge obtained

or prosecuted within the District by any other officers during the investigation”); Phelps v. City

Attorney's District Court Bureau. If the of New York, No. 04 CIV. 8570(DLC), 2006 U.S. Dist. LEXIS

allegations in a proposed accusatory 42926, at *9-10 (S.D.N.Y. June 29, 2006) (“The rationale

instrument are determined to be behind the [collective knowledge] doctrine is that in light of

unfounded, I send a letter to the the complexity of modern police work, the arresting officer

Associate Court Clerk stating that the cannot always be aware of every aspect of an investigation;

sometimes his authority to arrest a suspect is based on

the doctrine is typically used to establish probable cause complaints, or to withhold exculpatory evidence at trial. In

for the purpose of admitting evidence at trial, it is equally short, plaintiff has failed to provide any factual support for

applicable here. As the Supreme Court has recognized, police his conclusory allegations that the defendants have engaged

officers called upon to aid other officers in making an in unconstitutional policies or procedures. Accordingly,

arrest are entitled to assume that the officers requesting defendant's motion for summary judgment is granted.

aid have acted properly.” (internal quotations and citations

omitted)). Accordingly, it is not improper for an officer to

verify a criminal complaint based upon facts learned from C. Motion for Sanctions

another officer and plaintiff has put forth no evidence of a

policy, practice, or custom of Nassau County police officers The Court has also reviewed plaintiff's motion for sanctions

falsifying information in criminal complaints or committing and, for the reasons stated throughout this opinion, finds

perjury. plaintiff's claims to be without merit. Accordingly, plaintiff's

motion for sanctions is also denied. See S.E. C. v. Shainberg,

Moreover, the County of Nassau has put forward an affidavit 316 F. App'x 1, 2 (2d Cir.2008).

from a former Nassau County ADA, who investigated and

prosecuted a complaint against a Nassau County Police

Officer in an unrelated matter that alleged that the officer had V. CONCLUSION

committed perjury by falsely testifying before the grand jury.

(Defs.' Ex. Y ¶¶ 2-5.) That police officer was prosecuted and For the foregoing reasons, the Court grants defendants'

convicted of perjury in the third degree. (Id. ¶ 8.) In the face motion for summary judgment in its entirety. Because the

of this undisputed evidence of the County prosecuting perjury Court grants defendants' motion for summary judgment in its

when it is uncovered, plaintiff has not identified any specific entirety, it also denies plaintiff's motion for sanctions against

instances of police officers' commission of perjury that were defendant.

not prosecuted.

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

*15 In sum, the undisputed facts demonstrate the following: any appeal from this order would not be taken in good faith,

(1) plaintiff's conviction prevents him from disputing any and, therefore, in forma pauperis status is denied for the

alleged constitutional violations relating to his trial; (2) purpose of any appeal. See Coppedge v. United States, 369

defendants did investigate plaintiff's criminal complaints U.S. 438, 444-45 (1962).

regarding Officer Hughes's and Detective Comiskey's alleged

behavior; (3) defendants do have in place policies and SO ORDERED.

procedures whereby criminal complaints filed by private

citizens are investigated-even if those citizens are pretrial

detainees or criminal defendants; and (4) the County of All Citations

Nassau does not have a policy or procedure of permitting

Not Reported in F.Supp.2d, 2010 WL 335581

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