Harris v. Denully

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LAQUAN DEVOTA HARRIS,

Plaintiff,

-against-

23-CV-4601 (LTS)

SHANE DENULLY; P.O. MICHAEL

JORDAN; MICHAEL HERNANDEZ; NEIL ORDER OF DISMISSAL WITH LEAVE

GREENWELL; JUAN MERCHANT; TO REPLEAD

MEARIDITH T CHRISTOPHER; ROSEMARY

VASALLO,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is appearing pro se, brings this action under the Court’s federal question

jurisdiction, alleging that Defendants violated his Fourth Amendment rights. By order dated June

14, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is,

without prepayment of fees. For the reasons set forth in this order, the Court dismisses this

action, but grants Plaintiff 60 days’ 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. In reviewing the complaint, the Court must

accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). 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. 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.

BACKGROUND

Plaintiff’s complaint, which is challenging to read because of illegible handwriting,

names the following defendants: (1) Police Officer (“P.O.”) Shane Denully; (2) P.O. Michael

Jordan; (3) P.O. Michael Hernandez; (4) New York County Assistant District Attorney Neil

Greenwell; (5) Judge Juan Merchant; (6) Legal Aid Attorney Rosemary Vassallo; and

(7) Mearidith T. Christopher.1 The underlying events allegedly took place on Centre Street in

1 In this complaint Plaintiff does not clearly identify the Defendants, but he provides

more identifying information about some of them in another recently filed complaint. See Harris

v. Vassallo, ECF 1:23-CV-4440, 5 (LTS) (S.D.N.Y. July 7, 2023) (dismissing complaint and

granting leave to replead). Plaintiff has previously filed a number of pro se cases in this court.

New York City on November 19, 2018. (ECF 1 ¶ III.) Plaintiff alleges that Defendants violated

his Fourth Amendment rights, committed perjury, “gave false testimony”; “plotted” to falsely

accuse him of unspecified crimes, and stole his property. (Id. ¶ 1A.) In the “Injuries” section of

the complaint, Plaintiff alleges that he was “sexually assaulted in the bathroom of the 40th

command in the Bronx,” and that P.O. Jordan used physical force against him while he was

handcuffed. (Id. ¶ III.) Plaintiff seeks money damages. (Id. ¶ IV.)

DISCUSSION

A. Section 1983

The Court construes the complaint as asserting constitutional claims under 42 U.S.C.

§ 1983. To state a Section 1983 claim, a plaintiff must allege both that: (1) a right secured by the

Constitution or laws of the United States was violated, and (2) the right was violated by a person

acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).

For the reasons set forth below, Plaintiff’s complaint does not contain sufficient facts to state a

viable Section 1983 claims against the named Defendants.

B. Statute of limitations

Plaintiff’s claims appear to be untimely. 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,

See Harris v. Fuster, ECF 1:18-CV-10196, 11 (CM) (S.D.N.Y. Mar. 29, 2019) (dismissing

complaint for failure to state a claim and for lack of subject matter jurisdiction), recons. denied,

(S.D.N.Y. Sept. 20, 2019); Harris v. Mt. Sinai St. Lukes , ECF 1:20-CV-00293, 7 (CM)

(S.D.N.Y. Feb. 21, 2020) (dismissing complaint for lack of subject matter jurisdiction); Harris v.

Gittens, ECF 1:20-CV-1306, 8 (CM) (S.D.N.Y. Mar. 20, 2020) (dismissing complaint for failure

to state a claim and on immunity grounds); Harris v. Harris, ECF 1:19-CV-11658, 8 (CM)

(S.D.N.Y. June 5, 2020) (dismissing complaint for failure to state a claim); Harris v. Denully,

ECF 1:20-CV-1307, 14 (S.D.N.Y. Dec. 30, 2020) (dismissing complaint for failure to state a

claim); Harris v. CYA Mgmt., ECF 1:23-CV-4599, 1 (S.D.N.Y. filed June 5, 2023).

488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R.

§ 214(5). A Section 1983 claim generally accrues 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).

Plaintiff’s claims accrued on November 19, 2018, the date on which he suffered the

injuries that are the basis of his claims. See Pearl, 296 F.3d at 85 (explaining that claim accrued

when plaintiff was injured because he “was obviously aware of his cause of action for police

brutality at the time of the 1967 episode”). Plaintiff filed this complaint on May 30, 2023, more

than four years after the events giving rise to his claims occurred.

The doctrine of equitable tolling permits a court, “under compelling circumstances, [to]

make narrow exceptions to the statute of limitations in order ‘to prevent inequity.’” In re U.S.

Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation omitted). The statute of limitations may be

equitably tolled, for example, when a defendant fraudulently conceals from a plaintiff the fact

that the plaintiff has a cause of action, or when the plaintiff is induced by the defendant to forego

a lawsuit until the statute of limitations has expired. See Pearl, 296 F.3d at 82-83.

In addition, New York law provides by statute for other circumstances in which a

limitations period may be tolled. See, e.g., N.Y. C.P.L.R. § 204(a) (where commencement of an

action has been stayed by court order), id. at § 204 (where a dispute has been submitted to

arbitration but is ultimately determined to be non-arbitrable), id. at § 207(3) (defendant is outside

New York at the time the claim accrues), id. at § 208 (plaintiff is disabled by infancy or insanity),

id. at § 210 (death of plaintiff or defendant). See Wallace, 549 U.S. at 394 (“We have generally

referred to state law for tolling rules [for Section 1983 actions], just as we have for the length of

statutes of limitations.”).

Because the failure to file an action within the limitations period is an affirmative

defense, a plaintiff is generally 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).

Plaintiff is granted leave to file an amended complaint to provide facts showing that his

claims should not be dismissed as time-barred.

C. Claims against the named defendants

Legal Aid Attorney Rosemary Vasallo

Absent special circumstances suggesting concerted action between an attorney and a state

representative, see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970)), the representation of a defendant by private

counsel in state criminal proceedings does not constitute the degree of state involvement or

interference necessary to establish a claim under Section 1983, regardless of whether that

attorney is privately retained, court-appointed, or employed as a public defender. See Bourdon v.

Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 324-25

(1981)); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) (holding that legal aid

organization ordinarily is not a state actor for purposes of § 1983).

Defendant Rosemary Vasallo, who served as Plaintiff’s Legal Aid attorney, is a private

party who is not alleged to work for any state or other government body. Plaintiff thus has not

stated a claim against her under Section 1983.

Judge Merchant

Judges are absolutely immune from suit for damages for any actions taken within the

scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts

arising out of, or related to, individual cases before the judge are considered judicial in nature.”

Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot

overcome judicial immunity.” Id. (citations omitted). This is because, “[w]ithout insulation from

liability, judges would be subject to harassment and intimidation . . . .” Young v. Selsky, 41 F.3d

47, 51 (2d Cir. 1994). In addition, Section 1983, as amended in 1996, provides that “in any

action brought against a judicial officer for an act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.” 42 U.S.C. § 1983.

Judicial immunity does not apply when the judge takes action “outside” his judicial

capacity, or when the judge takes action that, although judicial in nature, is taken “in absence of

jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579 F.3d at 209-10 (describing actions

that are judicial in nature). But “the scope of [a] judge’s jurisdiction must be construed broadly

where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).

Plaintiff fails to allege any facts showing that Judge Merchant acted beyond the scope of

his judicial responsibilities or outside his jurisdiction. See Mireles, 509 U.S. at 11-12. Because

Plaintiff sues Judge Merchant for “acts arising out of, or related to, individual cases before him,”

he is immune from suit for such claims. Bliven, 579 F.3d at 210. The Court therefore dismisses

Plaintiff’s claims against Judge Merchant because they seek monetary relief against a defendant

who is immune from such relief, 28 U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous,

28 U.S.C. § 1915(e)(2)(B)(i). See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim

dismissed on the ground of absolute judicial immunity is ‘frivolous’ for purposes of [the in

forma pauperis statute].”).

Assistant District Attorney Neil Greenwell

Prosecutors are immune from civil suits for damages for acts committed within the scope

of their official duties where the challenged activities are not investigative in nature but, rather,

are “‘intimately associated with the judicial phase of the criminal process.’” Giraldo v. Kessler,

694 F.3d 161, 165 (2d Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see

also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (absolute immunity is analyzed under a

“functional approach” that “looks to the nature of the function performed, not the identity of the

actor who performed it” (internal quotation marks and citations omitted)). In addition,

prosecutors are absolutely immune from suit for acts that may be administrative obligations but

are “directly connected with the conduct of a trial.” Van de Kamp v. Goldstein, 555 U.S. 335,

344 (2009); see also Ogunkoya v. Monaghan, 913 F.3d 64, 70-72 (2d Cir. 2019) (holding that

ADAs’ direction as to where criminal defendant would be arraigned was in preparation for a

court proceeding in which the prosecutors were acting as advocates, and ADAs were therefore

shielded by absolute immunity).

Here, Plaintiff’s claims against Defendant Neil Greenwell are based on actions within the

scope of Defendant’s official duties and associated with the conduct of a trial. Therefore, these

claims are dismissed because they seek monetary relief against a defendant who is immune from

such relief, 28 U.S.C. § 1915(e)(2)(b)(iii), and, consequently, as frivolous, 28 U.S.C.

§ 1915(e)(2)(B)(i). See Collazo v. Pagano, 656 F. 3d 131, 134 (2d Cir. 2011) (holding that claim

against prosecutor is frivolous if it arises from conduct that is “intimately associated with the

judicial phase of the criminal process”).

Mearedith T Christopher.

To state a claim under Section 1983, a plaintiff must allege facts showing the 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 § 1983 solely because that defendant employs or

supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009) (“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 Mearedith T Christopher as a defendant in the caption of the complaint,

but he does not identify this Defendant or clarify how this Defendant was involved in the alleged

deprivation of Plaintiff’s rights. The Court grants Plaintiff leave to file an amended complaint to

detail his claims against Christopher.

Police Officers Denully, Jordan and Hernandez

Plaintiff names P.O. Hernandez and P.O. Denully, but provides no facts about what those

officers did or failed to do that violated Plaintiff’s constitutional rights. Plaintiff alleges in the

“Injuries” section of the complaint that P.O. Jordan used excessive force against him, but he

provides no other facts about that incident. Finally, Plaintiff claims that he was sexually

assaulted in the “40th command” in the Bronx, but he does not provide any other facts about the

incident, including the identity of the perpetrator. The Court grants Plaintiff leave to file an

amended complaint to detail his claims agains the police officer defendants.

D. State law claims

Although Plaintiff has not invoked state law, a pro se litigant’s complaint generally must

be liberally construed as including related state law claims. See McLeod v. Jewish Guild for the

Blind, 864 F.3d 154, 158 (2d Cir. 2017). A district court may decline to exercise supplemental

jurisdiction over state-law claims, however, when it “has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have

dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court

should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

n.7 (1988)).

Having dismissed the federal claims over which the Court has original jurisdiction, the

Court declines to exercise its supplemental jurisdiction of any state law claims that Plaintiff may

be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by

enumerating the circumstances in which district courts can refuse its exercise.’”) (quoting City of

Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).

LEAVE TO REPLEAD

District courts generally grant a pro se plaintiff leave to amend a complaint to cure its

defects, but leave to amend may be denied if the plaintiff has already been given an opportunity

to amend but has failed to cure the complaint’s deficiencies. See Ruotolo v. City of New York,

514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). In light

of Plaintiff’s pro se status, the Court grants Plaintiff leave to replead his excessive force claim in

an amended complaint.

CONCLUSION

Plaintiff’s complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii), (iii).

The Court grants Plaintiff 60 days’ leave to replead his claims under Section 1983 in an

amended complaint. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake

Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,”

and label the document with docket number 23-CV-4601 (LTS). If Plaintiff fails to file an

amended complaint within the prescribed time and he cannot show good cause for such failure,

the Court will enter judgment dismissing the action, and declining to exercise supplemental

jurisdiction of any state law claims Plaintiff may be asserting, 28 U.S.C. § 1367(c)(3).

An amended complaint form is attached to this order.

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: July 12, 2023

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

_____CV_______________

(Include case number if one has been

Write the full name of each plaintiff.

assigned)

AMENDED

-against-

COMPLAINT

Do you want a jury trial?

☐ Yes ☐ No

Write the full name of each defendant. If you need more

space, please write “see attached” in the space above and

attach an additional sheet of paper with the full list of

names. The names listed above must be identical to those

contained in Section II.

NOTICE

The public can access electronic court files. For privacy and security reasons, papers filed

with the court should therefore not contain: an individual’s full social security number or full

birth date; the full name of a person known to be a minor; or a complete financial account

number. A filing may include only: the last four digits of a social security number; the year of

an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

I. BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of

cases can be heard in federal court: cases involving a federal question and cases involving

diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United

States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,

a case in which a citizen of one State sues a citizen of another State or nation, and the amount

in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may

be a citizen of the same State as any plaintiff.

What is the basis for federal-court jurisdiction in your case?

☐ Federal Question

☐ Diversity of Citizenship

A. If you checked Federal Question

Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship

1. Citizenship of the parties

Of what State is each party a citizen?

The plaintiff , , is a citizen of the State of

(Plaintiff’s name)

(State in which the person resides and intends to remain.)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

.

If more than one plaintiff is named in the complaint, attach additional pages providing

information for each additional plaintiff.

If the defendant is an individual:

The defendant, , is a citizen of the State of

(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or

subject of the foreign state of

.

If the defendant is a corporation:

The defendant, , is incorporated under the laws of

the State of

and has its principal place of business in the State of

or is incorporated under the laws of (foreign state)

and has its principal place of business in .

If more than one defendant is named in the complaint, attach additional pages providing

information for each additional defendant.

II. PARTIES

A. Plaintiff Information

Provide the following information for each plaintiff named in the complaint. Attach additional

pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

B. Defendant Information

To the best of your ability, provide addresses where each defendant may be served. If the

correct information is not provided, it could delay or prevent service of the complaint on the

defendant. Make sure that the defendants listed below are the same as those listed in the

caption. Attach additional pages if needed.

Defendant 1:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 2:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 3:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

Defendant 4:

First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code

III. STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were

harmed, and what each defendant personally did or failed to do that harmed you. Attach

additional pages if needed.

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical

treatment, if any, you required and received.

IV. RELIEF

State briefly what money damages or other relief you want the court to order.

V. PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the

complaint is not being presented for an improper purpose (such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported

by existing law or by a nonfrivolous argument to change existing law; (3) the factual

contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery;

and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil

Procedure 11.

I agree to notify the Clerk's Office in writing of any changes to my mailing address. I

understand that my failure to keep a current address on file with the Clerk's Office may

result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to

proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:

☐ Yes ☐ No

If you do consent to receive documents electronically, submit the completed form with your

complaint. If you do not consent, please do not attach the form.