Askins v. The City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DELROY ASKINS,

Plaintiff,

-against- 1:22-CV-9277 (LTS)

THE CITY OF NEW YORK: POLICE

ORDER OF DISMISSAL

DEPARTMENT; THE 25TH PRECINCT +

EMPLOYEES,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Delroy Askins, who is appearing pro se, filed this action invoking the Court’s

federal question jurisdiction, asserting that the legal bases for the Court to consider Plaintiff’s

claims under its federal question jurisdiction are his “civil rights, [his] human rights[,] and [that

he] believe[s] the [Americans with Disabilities Act of 1990 (“ADA”)] rights have been violated.”

(ECF 2, at 2.) Plaintiff sues the City of New York, as well as the “Police Department, the 25th

Precinct,” and “employees,” which the Court understands to be the New York City Police

Department (“NYPD”), its 25th Precinct, and that precinct’s employees. Plaintiff seeks

$1,000,000 in damages, as well as unspecified injunctive relief against the City of New York and

the NYPD’s 25th Precinct. The Court construes Plaintiff’s complaint as asserting claims of

federal constitutional violations under 42 U.S.C. § 1983, as well as claims under Title II of the

ADA and the Rehabilitation Act of 1973.

By order dated October 31, 2022, the Court granted Plaintiff’s request to proceed in

forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the

Court dismisses this action, but grants Plaintiff leave to replead his claims in an amended

complaint.

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 on 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); see

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See

Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in

original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially

plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that

the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In

reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id.

But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,”

which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After

separating legal conclusions from well-pleaded factual allegations, the Court must determine

whether those facts make it plausible – not merely possible – that the pleader is entitled to relief.

Id. at 679.

BACKGROUND

Plaintiff alleges the following: Plaintiff is a wheelchair-bound paraplegic. In August

2021, he was robbed, and his life was threatened, at the intersection of 125th Street and

Lexington Avenue, in New York, New York. On August 4, 2021, a person employed at the

NYPD’s 25th Precinct “contacted [Plaintiff] . . . to see what they [could] do regarding . . . the

robbery.” (ECF 2, at 8.) Plaintiff then made many visits and telephone calls to the NYPD’s 25th

Precinct, but he has since come to believe that individuals employed at that precinct have

discriminated against him.

Plaintiff later sought assistance from the New York City Civilian Complaint Review

Board (“CCRB”), which referred the matter to the NYPD’s Police Headquarters; Plaintiff has not

received any type of response from the CCRB or Police Headquarters. The NYPD’s 25th

Precinct “seems to [have] default[ed] on their responsibility [to] the citizens of Harlem,” which

is the New York City neighborhood where Plaintiff resides, and to the citizens of New York City

as a whole. (Id.) “[T]he consequences of this [d]iscrimination [are that Plaintiff has] suffered,

humiliation, and emotional distress[,] just to name [a] few.” (Id.)

DISCUSSION

A. The NYPD and the NYPD’s 25th Precinct

The Court must dismiss Plaintiff’s claims against the NYPD and the NYPD’s 25th

Precinct because agencies of the City of New York, such as these defendants, are not entities that

can be sued separately from the City. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and

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

name of the city of New York and not in that of any agency, except where otherwise provided by

law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v.

City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) (“[A] plaintiff is generally

prohibited from suing a municipal agency.”).

Plaintiff has named, along with the NYPD and the NYPD’s 25th Precinct, the City of

New York as an additional defendant in this action. Accordingly, the Court dismisses Plaintiff’s

claims against the NYPD and the NYPD’s 25th Precinct for failure to state a claim on which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Claims under 42 U.S.C. § 1983

Claims under Section 1983 against the City of New York

The Court must dismiss Plaintiff’s claims under Section 1983 against the City of New

York. When a plaintiff sues a municipality, such as the City of New York, under Section 1983, it

is not enough for the plaintiff to allege that one of the municipality’s employees or agents

engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the

violation of the plaintiff’s rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“A

municipality or other local government may be liable under this section [1983] if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be

subjected’ to such deprivation.”) quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658, 692 (1978))); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words,

to state a claim under Section 1983 against a municipality, the plaintiff must allege facts

showing: (1) the existence of a municipal policy, custom, or practice; and (2) that the policy,

custom, or practice caused the violation of the plaintiff’s constitutional rights. Jones v. Town of

East Haven, 691 F.3d 72, 80 (2d Cir. 2012); see Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 403 (1997) (internal citations omitted).

If there is no underlying constitutional violation, however, the Court need not examine

whether the municipality is liable under Section 1983. See Segal v. City of New York, 459 F.3d

207, 219 (2d Cir. 2006). Government officials, including police officers, generally have no

federal constitutional duty to investigate or protect an individual from harm. See Town of Castle

Rock, Colo. v. Gonzales, 545 U.S. 748, 755-56 (2005); DeShaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 195-96 (1989); Gagliardi v. Vill. of Pawling, 18 F.3d 188, 192 (2d Cir.

1994); see also Baltas v. Jones, 3:21-CV-0469, 2021 WL 6125643, at *14 (D. Conn. Dec. 27,

2021) (The plaintiff “has no ‘constitutional right to an investigation of any kind by government

officials.’”) (citation omitted); Buari v. City of New York, 530 F. Supp. 3d 356, 389 (S.D.N.Y.

2021) (“[T]here is no constitutional right to an adequate investigation. . . . Accordingly, a failure

to investigate is not independently cognizable as a stand-alone claim under Section 1983.”)

(internal quotation marks and citation omitted).

There are two recognized exceptions to this general rule: (1) “when the State takes a

person into its custody and holds him there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety and general well-being,”

DeShaney, 489 U.S. at 199-200; (2) when government officials affirmatively create or increase

danger to the plaintiff, see, e.g., Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008).

In this context, the plaintiff must also show that a government official’s “behavior was ‘so

egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Id.

(citation omitted).

To the extent that Plaintiff asserts that members of the NYPD have failed to protect him

or investigate harm that has come to him, he does not allege any facts suggesting that either of

these two exceptions is applicable here. He also does not allege any facts showing that a policy,

custom, or practice of the City of New York caused a violation of his federal constitutional

rights. The Court therefore dismisses Plaintiff’s claims under Section 1983 against the City of

New York for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii). In

light of Plaintiff’s pro se status, however, the Court grants Plaintiff leave to file an amended

complaint in which he alleges facts sufficient to state a claim under Section 1983 against the City

of New York.

Claims under Section 1983 against individual NYPD employees

The Court must also dismiss Plaintiff’s claims against individual NYPD employees. To

state a claim under Section 1983, a plaintiff must allege facts showing the individual defendants’

direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y.

State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit

that personal involvement of defendants in the alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A

defendant may not be held liable under Section 1983 solely because that defendant employs or

supervises a person who violated the plaintiff’s rights. See Iqbal, 556 U.S. at 676 (“Government

officials may not be held liable for the unconstitutional conduct of their subordinates under a

theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff

must plead and prove the elements of the underlying constitutional violation directly against the

official. . . .” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).

Plaintiff names as defendants generally, as a group, unidentified individual employees of

the NYPD’s 25th Precinct, but he does not allege any facts showing how any of these individuals

was personally and directly involved with any violations of his federal constitutional rights. The

Court therefore dismisses Plaintiff’s claims under Section 1983 against these defendants for

failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii).The Court,

however, grants Plaintiff leave to file an amended complaint in which he names specific

individuals as defendants and alleges facts showing how each of these defendants was personally

and directly involved in the alleged violations of Plaintiff’s constitutional rights.1

C. Claims under the Title II of the ADA and the Rehabilitation Act

Plaintiff has offered information in his complaint suggesting that he has a disability and

that the experiences alleged in the complaint constitute discrimination. Accordingly, the Court

construes Plaintiff’s complaint as asserting claims of disability discrimination under Title II of

the ADA and the Rehabilitation Act against the City of New York.2 Title II of the ADA provides

that “no qualified individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any such entity.”3 42 U.S.C. § 12132. Under the

Rehabilitation Act:

no otherwise qualified individual with a disability in the United States . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be

1 If Plaintiff does not know the name of an individual defendant, he may refer to that

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

complaint. Plaintiff may, for example, identify an individual defendant as “NYPD Police Officer

John Doe, assigned to the 55th Precinct desk, who was on duty on August 31, 2022, during the 7

a.m. to 3 p.m. tour of duty.”

2 Courts have held that the ADA and the Rehabilitation Act do not provide for liability of

individuals in their individual capacities. See, e.g., Goe v. Zucker, 43 F.4th 19, 35 (2d Cir. 2022)

(Rehabilitation Act), petition for cert. filed, (Nov. 1, 2022); Garcia v. S.U.N.Y. Health Scis. Ctr.

of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (Rehabilitation Act and Title II of the ADA).

Additionally, “[t]here is no longer a need to bring official-capacity actions against local

government officials [because] local government units can be sued directly for damages and

injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (discussion

in the Section 1983 context). Thus, the proper defendant for such claims here is the City of New

York. See N.Y. City Charter ch. 17, § 396; cf. Coon v. Town of Springfield, 404 F.3d 683, 687

(2d Cir. 2005) (“[A] § 1983 suit against a municipal officer in his official capacity is treated as

an action against the municipality itself.”).

3 The City of New York, as a local government, is a “public entity” under Title II of the

ADA. See 42 U.S.C. § 12131(1)(A).

denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance or under any program or activity

conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a). The definition of “disability” under the ADA and the definition of an

individual with a disability under the Rehabilitation Act are identical. See 42 U.S.C. § 12102(1)

(ADA); 29 U.S.C. § 705(20)(B) (Rehabilitation Act). Because the standards under Title II of the

ADA and the Rehabilitation Act “are generally the same and the subtle distinctions between the

statutes are not implicated in this case, ‘[the Court will] treat claims under the two statutes

identically’” for the purposes of this order, except where otherwise noted. Wright v. N.Y. State

Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (quoting Henrietta D. v. Bloomberg, 331 F.3d

261, 272 (2d Cir. 2003)).

To state a claim under Title II of the ADA or under the Rehabilitation Act, the plaintiff

must allege that (1) the plaintiff is a qualified individual with a disability; (2) the defendant is

subject to the ADA or the Rehabilitation Act; and (3) the plaintiff was denied the opportunity to

participate in or benefit from the defendant’s services, programs, or activities, or was otherwise

discriminated against by the defendant, by reason of the plaintiff’s disability.4 Shomo v. City of

New York, 579 F.3d 176, 185 (2d Cir. 2009) (quoting Henrietta D., 331 F.3d at 272).

“Additionally, to establish a violation under the Rehabilitation Act, a plaintiff must show that the

4 Following the Supreme Court of the United States’s ruling in Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 176-77 (2009), in which it held that “age discrimination must be the ‘but-for’

cause of an adverse employment action for . . . liability to attach” under the Age Discrimination

in Employment Act (ADEA), the United States Court of Appeals for the Second Circuit has not

decided whether “but-for” causation or “mixed motive” causation is required to state a claim

under Title II of the ADA or a non-employment discrimination claim under the Rehabilitation

Act. Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir. 2010) (discussion in the context of Title

II of the ADA). But cf. Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019) (holding that

“but-for” causation applies to employment discrimination claims brought under the

Rehabilitation Act).

defendant[] [is either a federal executive agency, the United States Postal Service, or] receive[s]

federal funding.” Henrietta D., 331 F.3d at 272; see § 794(a).

The Court assumes, for the purpose of this order, that Plaintiff is a qualified individual

with a disability, that the City of New York is subject to the requirements of Title II of the ADA

and the Rehabilitation Act, and that the City of New York (NYPD) receives federal funding.

Plaintiff has alleged no facts, however, showing that he was denied the opportunity to participate

in or benefit from the City of New York’s (NYPD’s) services, programs, or activities, or was

otherwise discriminated against by the City of New York (NYPD), by reason of his disability.

The Court therefore dismisses Plaintiff’s claims under Title II of the ADA and the Rehabilitation

Act against the City of New York for failure to state a claim on which relief may be granted. See

§ 1915(e)(2)(B)(ii). The Court, however, grants Plaintiff leave to file an amended complaint in

which he alleges fact sufficient to state a claim against the City of New York under Title II of the

ADA and/or the Rehabilitation Act.

CONCLUSION

The Court dismisses this action for failure to state a claim on which relief may be

granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court, however, grants Plaintiff leave to file an

amended complaint, as specified above, within 30 days of the date of this order. If Plaintiff fails

to file an amended complaint within the time allowed, or fails to set forth good cause why he is

unable to file an amended complaint in compliance with this order within the time allowed, the

Court will enter judgment dismissing this action for failure to state a claim on which relief may

be granted. See id.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See

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

SO ORDERED.

Dated: December 5, 2022

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge