Iwala v. New York City Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MARTINA INUMIDUN IWALA,

Plaintiff,

-against-

NEW YORK CITY POLICE DEPARTMENT 23-CV-5078 (LTS)

032 PRECINT; ALEX YAKATALLY;

DANIEL GINES SHIELD 19125; STEVEN ORDER TO AMEND

MAZZAMUTO OR UNNAMED ACTOR

SHIELD NUMBER 2775; JENNIFER

GARCIA SHIELD 5765; BRANDON

JAIRAM SHIELD 20545,

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 New York City police officers falsely arrested her and violated her

rights in other ways. By order dated September 27, 2023, 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 grants Plaintiff leave to file an amended complaint within 60 days of the date of

this order.

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 of the Federal Rules of Civil Procedure 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 filed this complaint against the following Defendants: (1) the New York City

Police Department, 32nd Precinct; (2) Alex Yakatally; (3) Daniel Gines, shield 19125; (4) Steven

Mazzamuto, shield 2775; (5) Jennifer Garcia, shield 5765; (6) Brandon Jairam, shield 20545; (7)

Akter shield 19881; and (8) John and Jane Does 1-3. The following summary of the allegations

is drawn from the complaint, which does not present the underlying events in a straightforward

manner. Adding to the confusion is the fact that Plaintiff refers to herself as the “Injured Party,”

(“IP”), “the beneficiary,” and “the representative,” and to Defendants as “actors,” “white shirt

defendants,” and “entities acting as officers.”1 (ECF 1 at 3.) In this order, the Court will use the

terms “Plaintiff” and “Defendants” or “officers” to refer to the parties.

On January 20 2021, Officer Gines gave Plaintiff’s “stalker ex-boyfriend and his female

accomplice known as ‘Nunu’ tips on how to avoid police being able to remove the two criminals

from the premises.” (Id.) In February 2021, Gines “violated [an] active order of protection by

asking [Plaintiff] details about the case and the order of protection, such as, “‘[w]hy did you tell

the judge you dated?”’ (Id.) Later that month, “as [Plaintiff] pulled out [her] phone to begin

recording, [Gines] call[ed] [her] a ‘tranny [n-word]’ before turning on his body cam then

reaching over as if to turn on his partners body camera and smiling.” (Id.) The complaint does

not provide any context in which these events arose. ‘

On September 27 2022, Plaintiff was working as a “location scout” on Frederick

Douglass Boulevard in Harlem, and a “black male verbally accosted her while she was on the

phone, which led to “a physical altercation” that left Plaintiff “unable to walk.” (Id.) Plaintiff

called 911, and “attempted to use her work phone’s flash feature to get the approximately six

[officers’] attention,” but they were “across the avenue laughing with each other at something on

their phones rather than finding [Plaintiff].” (Id.) An officer called Plaintiff to find out where she

was, and “instructed [Plaintiff] to hop or crawl from a safe area with witnesses to an area easier

for them to find her.” (Id.) Plaintiff showed the officers a video on her phone of “the unnamed

assailant walking away with the words ‘HELP’ clearly audible in the background.” (Id.) The

1 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation

are as in the original, unless noted otherwise.

assailant was not arrested, and the “hate crime” went unreported. (Id.) Emergency responders

“informally diagnos[ed]” Plaintiff with a “sore ankle,” although she later learned that she

“sustained at least a partial rupture to her Achilles.” (Id.) She “was abandoned at Columbia

Hospital’s Emergency Room, and after waiting nearly two hours, limped to a car service without

any assistance.” (Id.)

On October 18, 2022, Plaintiff and a “Caucasian male” each called 911 to report the other

to the police; the male alleged that Plaintiff had “hurt” him.” (Id.) Officers Garcia and Jairam

responded to the call:

Garcia and Jairam “were informed of an injury before [Plaintiff] was illegally and

unlawfully detained leading to further damage to [her]. [Plaintiff] informed [them]

of contracts barring unauthorised recording and documentation. While unlawfully

seized and illegally in custody, [Plaintiff] lost balance and subsequently fell to the

ground. While on the ground, actor Jennifer Garcia stated ‘Yeah right, you’re not

hurt yet” and at some point stomped in addition to leaving [Plaintiff] on the

ground allowing onlooker(s) to step on and kick [her] ankle causing further

damage to [her] Achilles tendon.

(Id.)

Plaintiff asked why she was being detained, but the officers “claimed [she] was not being

detained or arrested.” (Id. at 5.) Plaintiff “demanded” to see a “magistrate over four” times, but

she was held at the 32nd Precinct “for approximately thirty” minutes and may have been issued a

desk appearance ticket. (Id.) According to Plaintiff, Garcia and Jairam invaded her privacy by

“taking Plaintiff’s private property and moving it into the public without” consent; took “images,

audio, on any devices or streaming or transmitting node without consent”; and committed sexual

misconduct, forcible touching, and kidnaping. (Id. at 5-6.)

The following week, Plaintiff received text messages from an unfamiliar number. (Id. at

7.) When Plaintiff went to the precinct to file a police report, she had to wait “in the cold, with a

disability for over an hour with no one appearing,” and she was also “denied communication

with” Defendant Yatakally. (Id. at 7.)

On June 1, 2023, Plaintiff “was held for ransom as debtor,” “seized for over 19 hours

under [a] false arrest warrant,” and “received cruel and unusual punishment by being inhumanely

starved and without water, and “asked to take off [her] head wrap or niqab in front of [a]

stranger, in violation of her “faith and religion.” (Id. at 1, 4, 8.)

Plaintiff invokes 42 U.S.C. § 1986 and 14141; the Fourth, Fifth, and Eighth Amendments

to the United States Constitution; the Americans With Disabilities Act; the Rehabilitation Act;

and 18 U.S.C. § 241, 242, 654, and 1510. Plaintiff asserts claims of false arrest; false

imprisonment; malicious prosecution; and gender discrimination. In addition, Plaintiff alleges

that Defendants violated her rights to equal protection, privacy, a fair trial, and to “confront

evidence.” (Id. at 8.) Plaintiff further asserts that Defendants “trafficked” her, and engaged in

“securities fraud,” extortion, defamation, harassment, sexual misconduct, forcible touching “with

threat of deadly weapon,” and kidnaping. (Id.)

Plaintiff seeks more than $1 billion in money damages for lost wages and “past due and

overdue invoices.” She also seeks: (1) a “speedy trial”; (2) to have “all records, images, audio,

footage, and other identifying variables” about her be “eliminated from all records, servers and

storage in accordance with 5 U.S.C. § 552a”; and (3) an “investigation” into the 32nd Precinct.

DISCUSSION

A. 42 U.S.C. § 1983

The Court construes Plaintiff’s claims that Defendants violated her constitutional rights

as arising under 42 U.S.C. § 1983. To state a claim under Section 1983, 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).

1. “NYPD/32nd Precinct” and the City of New York

Plaintiff’s claims against the “NYPD/32nd Precinct” must be dismissed because an

agency of the City of New York is not an entity that can be sued. 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, 396 (S.D.N.Y. 2010) (“[A] plaintiff is

generally prohibited from suing a municipal agency.”).

It may be Plaintiff’s intention to assert claims against the City of New York. When a

plaintiff sues a municipality 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 § 1983 claim 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. See Jones

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

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

There are no facts in the complaint suggesting that a municipal policy, custom, or practice

caused the violation of Plaintiff’s constitutional rights. Plaintiff is granted leave to file an

amended complaint should there be additional facts to support a claim against the City of New

York.

2. Individual Defendants

To state a claim under Section 1983 against individual defendants, 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).

For the reasons discussed below, there are insufficient facts in the complaint to state

plausible Section 1983 claims against any of the individual Defendants.

(i) Officer Gines

According to Plaintiff, Officer Gines spoke with her “stalker ex-boyfriend and his female

accomplice,” and improperly asked her questions about an order of protection. That Gines spoke

with Plaintiff’s ex-boyfriend and made comments to her about an order of protection, does not

give rise to an inference that he violated her constitutional rights.

Plaintiff also claims that Gines addressed her using an offensive slur. It is well established

that “verbal harassment alone does not amount to a constitutional deprivation.” Ali v. Connick,

136 F. Supp. 3d 270, 276 (E.D.N.Y. 2015). Even “the use of racial slurs or epithets reflecting

racial prejudice, although reprehensible, does not form the basis of a claim pursuant to [Section]

1983,” absent some additional appreciable injury. Baskerville v. Goord, No. 97-CV-6413, 2000

WL 897153, at *3 (S.D.N.Y. July 6, 2000); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)

(holding that name-calling without “any appreciable injury” did not violate inmate’s

constitutional rights); Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995) (“[T]he

taunts, insults and racial slurs alleged to have been hurled at plaintiff by defendants, while

reprehensible if true, do not comprise an infringement of constitutional guarantees.”). By

contrast, allegations of verbal harassment coupled with other injury can state a claim for a

violation of constitutional rights. See Cole v. Fischer, 379 F. App’x 40, 43 (2d Cir. 2010)

(summary order) (“When the verbal harassment and simultaneous physical abuse . . . are

considered together, we have little trouble concluding that plaintiff’s allegations were sufficient

to state a § 1983 claim for discrimination on the basis of race . . . .”).

Here, Plaintiff has alleged that Gines used an epithet reflecting prejudice based on race

and gender identity. As offensive as this alleged conduct is, verbal harassment alone does not

amount to a deprivation of rights protected by the U.S. Constitution. Because Plaintiff’s

interaction with Gines appears to have been limited to this verbal harassment, the facts alleged

are insufficient to rise to the level of a violation of her constitutional rights.

(ii) Mazzamuto, Akter, Doe defendants, Yakatally, Garcia, and Jairam

Plaintiff names Steven Mazzamuto, “Akter shield 19881,” and Doe defendants in the

caption of the complaint, but she does not allege any facts against any of them. Plaintiff thus

does not allege the manner in which they were personally involved in what occurred, and it is not

clear why she named them as Defendants, or whether they may be held liable for what occurred.

Plaintiff’s sole allegation against Defendant Yakatally is that she was “denied” the right to

“communicate” with him, which does not suggest that he violated her constitutional rights.

Plaintiff alleges that Garcia and Jairam unlawfully detained her on October 18, 2022,

however, as discussed below, she does not provide sufficient facts for the Court to understand

exactly what occurred and whether she plausibly state a claim against them, or any other

individual officer, arising out of that arrest.

B. Section 1983 claims arising out of arrest

1. False arrest

Plaintiff’s allegations suggest that she is raising a claim of false arrest or false

imprisonment.2 The Court first looks to state law to establish the elements of a false arrest claim

under Section 1983. See Manuel v. City of Joliet, Ill., 580 U.S. 357, 378 (2017) (Alito, J,

dissenting) (“[T]o flesh out the elements of this constitutional tort, we must look for ‘tort

analogies.’”); see also Lanning v. City of Glens Falls, 908 F.3d 19, 25 (2d Cir. 2018) (holding

that common law principles are meant simply to guide rather than to control the definition of

2 The “elements of a claim for false imprisonment made pursuant to Section 1983 are the

same as those for false arrest,” Copeland v. New York City Police Dep’t, No. 97-CV-4224 (DLC),

1998 WL 799169, at *2 (S.D.N.Y. Nov. 13, 1998), and thus, “the claims are analyzed in identical

fashion,” Mitchell v. Home, 377 F. Supp. 2d 361, 371 (S.D.N.Y. 2005); see also Leibovitz v.

Barry, No. 15-CV-1722 (KAM), 2016 WL 5107064, at *8 (E.D.N.Y. Sept. 20, 2016) (analyzing

false arrest and false imprisonment claims under both Section 1983 and New York law as

“essentially the same causes of action”); Murry v. Williams, No. 05-CV-9438 (NRB), 2007 WL

430419, at *5 (S.D.N.Y. Feb. 8, 2007) (“[W]e consider claims of false arrest and false

imprisonment to be synonymous causes of action, as the elements of both claims under New

York law are the same.” (citing Covington v. City of New York, 171 F.3d 117, 125 (2d Cir.

1999))).

Section 1983 claims and courts should not “mechanically apply” the law of New York State),

abrogated on other grounds, Thompson v. Clark, 596 U.S. 36 (2022).

Under New York law, to state a claim for false arrest, a plaintiff must show that: “(1) the

defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the confinement,

(3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise

privileged.” Liranzo v. United States, 690 F.3d 78, 95 (2d Cir. 2012). An arrest is privileged if it

is based on probable cause. Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007).

Officers have probable cause to arrest when they “have knowledge or reasonably

trustworthy information of facts and circumstances that are sufficient to warrant a person of

reasonable caution in the belief that the person to be arrested has committed or is committing a

crime.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (emphasis and citation

omitted). “Probable cause can exist even where it is based on mistaken information, so long as

the arresting officer acted reasonably and in good faith in relying on that information.” Bernard

v. United States, 25 F.3d 98, 102 (1994); Curley v. Vill. Of Suffern, 268 F.3d 65, 70 (2d Cir. 2001)

(holding that a police officer is “not required to explore and eliminate every theoretically

plausible claim of innocence before making an arrest.”).

Plaintiff alleges that, on October 18, 2022, she and an unidentified male reported each

other to the police. The unidentified male alleged that Plaintiff had “hurt” him. (Id. at 4.) The

complaint does not provide any context for these allegations, and Plaintiff does not explain why

she was arrested or on what charges. Thus, the Court cannot assess whether there was probable

cause for the arrest, or whether Plaintiff could possibly state a claim of false arrest or false

imprisonment.

The complaint contains even less information about the June 2, 2023 arrest. Plaintiff’s

pleading does not describe the events leading up to that arrest, identify the officers involved in

the arrest, what occurred during her detention, or identify the status of the charges. The Court

grants Plaintiff leave to file an amended complaint to provide facts regarding the arrests on

October 18, 2022, and June 2, 2023.

2. Malicious Prosecution

The tort of malicious prosecution “remedies detention accompanied, not by absence of

legal process, but by wrongful institution of legal process.” Wallace v. Kato, 549 U.S. 384, 389-

90 (2007). To state a claim for malicious prosecution, a plaintiff must allege facts showing:

(1) that the defendant initiated or continued a prosecution against the plaintiff; (2) that the

defendant lacked probable cause to commence the proceeding or believe the proceeding could

succeed; (3) that the defendant acted with malice; and (4) that the prosecution was terminated in

the plaintiff’s favor. See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002). Such a claim does

not accrue until there is a favorable termination of the plaintiff’s criminal proceedings. See Heck

v. Humphrey, 512 U.S. 477, 489-90 (1994).3 “To demonstrate a favorable termination of a

criminal prosecution for purposes of the Fourth Amendment claim under § 1983 for malicious

3 See also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983

action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable

relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal

prison proceedings) – if success in that action would necessarily demonstrate the invalidity of

confinement or its duration.”) (italics in original); Heck, 512 U.S. at 486-87 (“[I]n order to

recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas

corpus. . . .”) (footnote omitted).

prosecution, a plaintiff need only show that his prosecution ended without a conviction.”

Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022)

Plaintiff’s criminal proceedings appear to be ongoing; without a favorable termination,

she cannot pursue a cause of action for malicious prosecution. If the charges led to a conviction,

Plaintiff would have to allege that the conviction has been invalidated or otherwise overturned;

she has made no such allegation. Accordingly, the Court dismisses Plaintiff’s claims of malicious

prosecution under Section 1983 for failure to state a claim on which relief may be granted, see

§ 1915A(b)(1), but without prejudice to Plaintiff’s assertion of these claims again, in a separate

civil action, if her conviction is invalidated or otherwise overturned.

3. Other misconduct

In her complaint, Plaintiff asserts that police officers subjected her to excessive force,

discriminated against her on the basis of her gender and religion, and engaged in sexual

misconduct and forcible touching. Because Plaintiff does not give details about what occurred,

her allegations are conclusory and do not give rise to a plausible claim under Section 1983. The

Court grants Plaintiff leave to file an amended complaint to provide more facts regarding these

events, and in support of these claims.

Plaintiff makes other allegations that do not appear to give rise to any plausible claims

under Section1983. The complaint suggests that the police would not allow her to file a police

report, or investigate her complaint. As a general matter, crime victims do not have a stand-alone

constitutional right to have officers investigate their complaints. See Troy v. City of New York,

No. 13-CV-5082 (AJN), 2014 WL 4804479, at *6 (S.D.N.Y. Sept. 25, 2014) (holding that there is

“no constitutional right to an investigation by government officials”), aff’d, 614 F. App’x 32 (2d

Cir. 2015); Lewis v. Gallivan, 315 F. Supp. 2d 313, 316 (W.D.N.Y. 2004) (“[T]he law is well

settled that no private citizen has a constitutional right to bring a criminal complaint against

another individual.”); cf. Harrington v. Cnty. of Suffolk, 607 F.3d 31, 35 (2d Cir. 2010) (in the

procedural due process context, holding that parents had no constitutional due process property

interest in adequate police investigation of motor vehicle collision that killed their son).

Plaintiff further alleges that Defendants “invaded her privacy” by “taking Plaintiff’s

private property and moving it into the public without” consent; took “images, audio, on any

devices or streaming or transmitting node without consent.” (ECF 1 at 2.) There exists a right to

privacy under the Fourteenth Amendment that includes protecting “the individual interest in

avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977). This

constitutional protection against dissemination of information, however, is limited and extends

only to highly personal matter such as medical conditions that are “excruciatingly private and

intimate in nature.” Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63-64 (2d

Cir. 2011).

Here, Plaintiff does not appear to refer to the dissemination of information; instead,

Plaintiff refers to the public display of “property.” These allegations do not show that Defendants

violated Plaintiff’s privacy, and the Court dismisses those claims for failure to state a claim on

which relief may be granted.

C. 42 U.S.C. § 1986

Plaintiff asserts a claim under 42 U.S.C. § 1986. Section 1986 provides a remedy against

individuals who “kn[ew] of and ha[d] the ability to aid in preventing a conspiracy [under 42

U.S.C. § 1985]. . . [and] decline[d] to take steps preventing that conspiracy. . . .” Wahad v. FBI,

813 F. Supp. 224, 232 (S.D.N.Y. 1993); see Section 1986. Claims under this section are only

valid “if there is a viable conspiracy claim under section 1985.” Gagliardi v. Vill. of Pawling, 18

F.3d 188, 194 (2d Cir. 1994). Plaintiff does not invoke Section 1985[3], but the Court will

construe the complaint to read as if she had.

To state a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff must allege facts that

plausibly show that there exists: (1) a conspiracy; (2) for the purpose of depriving the plaintiff of

the equal protection of the laws, or the equal privileges or immunities under the laws; (3) an

overt act in furtherance of the conspiracy; and (4) an injury to his person or property, or a

deprivation of his right or privilege as a citizen of the United States. Thomas v. Roach, 165 F.3d

137, 146 (2d Cir. 1999). “[T]he [§ 1985(3)] conspiracy must also be motivated by some racial or

perhaps otherwise class-based, invidious discriminatory animus behind the conspirators’ action.”

Id. (internal quotation marks and citation omitted). Vague and unsupported assertions of a

conspiracy claim under § 1985(3) will not suffice. See Gallop v. Cheny, 642 F.3d 364, 369 (2d

Cir. 2011) (Plaintiff’s allegations of conspiracy were ‘baseless” where plaintiff “offer[ed] not a

single fact to corroborate her allegation of a ‘meeting of the minds’ among the coconspirators.”);

Cambriello v. Cnty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (“[C]omplaints containing only

conclusory, vague, or general allegations that defendants have engaged in a conspiracy to deprive

the plaintiff of his constitutional rights are properly dismissed.” (internal quotation marks

omitted)). For that reason, claims under Section 1985 must be alleged “with at least some degree

of particularity” and must include facts showing that the “overt acts which defendants engaged in

. . . were reasonably related to the promotion of the claimed conspiracy.” Hernandez v. Goord,

312 F. Supp. 2d 537, 546 (S.D.N.Y. 2004).

Plaintiff does not assert facts supporting the existence of an actual agreement between

Defendants or factual details concerning the inception or operation of any conspiracy that was

motivated by racial or class-based animus against her, or that Defendants’ conduct was

attributable or otherwise motivated by her race or other class-based factor recognized under

Section 1985, or that Defendants singled her out because of her race or her membership in a

protected class. Because Plaintiff does not assert any facts suggesting that Defendants conspired

to deny her the equal protection of the law, and her allegations are conclusory, the Court

dismisses the conspiracy claims for failure to state a claim on which relief may be granted.

D. Section 14141

Plaintiff also invokes the Violent Crime Control and Law Enforcement Act of 1994,

codified at 42 U.S.C. § 14141. Under that statute:

It shall be unlawful for any governmental authority, or any agent thereof, or any

person acting on behalf of a governmental authority, to engage in a pattern or

practice of conduct by law enforcement officers or by officials or employees of

any governmental agency with responsibility for the administration of juvenile

justice or the incarceration of juveniles that deprives persons of rights, privileges,

or immunities secured or protected by the Constitution or laws of the United

States.

Section 14141(a). There is no private right of action contained within Section 14141. See Miller

v. Carpinello, No. 06-CV-12940 (LAP), 2007 WL 4207282, at *7 (S.D.N.Y. Nov. 20, 2007). “By

its terms, [Section 14141] provides enforcement authority only to the [United States] Department

of Justice.” Inkel v. Bush, No. 04-CV-69 (JBA), 2004 WL 2381747, at *3 (D. Conn. Oct. 19,

2004) (citing Section 14141(b)). Because there is no private right of action under Section 14141,

Plaintiff’s claim under that statute is dismissed for failure to state a claim on which relief may be

granted.

E. Disability discrimination

Plaintiff invokes the ADA, and the Court therefore considers whether she states a claim

under Title II of the ADA, which prohibits disability discrimination by public entities, 42 U.S.C.

§ 12131 et seq.,4 or under Title III, which prohibits disability discrimination in access to public

4 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.” 42 U.S.C. § 12132. Title III of the ADA provides that “[n]o individual shall be

accommodations, 42 U.S.C. § 12181 et seq.5 The purpose of the ADA is “to ensure evenhanded

treatment between the disabled and the able-bodied.” Garcia v. S.U.N.Y. Health Scis. Ctr. of

Bklyn., 280 F.3d 98, 112 (2d Cir. 1998).

Plaintiff also invokes the Rehabilitation Act. Section 504 of the Rehabilitation Act

similarly provides that “[n]o 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 denied

the benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C. § 794(a). When brought together, claims under Title II and

Section 504 may be treated identically.” Hilton v. Wright, 928 F. Supp. 2d 530, 556-57 (N.D.N.Y.

2013) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

The sole allegation in the complaint that references a disability is that Plaintiff waited

outside the precinct “in the cold, with a disability.” (ECF 1 at 3.) Plaintiff does not provide facts

regarding the nature of her disability. Even if Plaintiff is disabled, she makes no allegation that

the incident described in the complaint was related to any disability that she might have. Thus,

the Court cannot infer that any Defendant discriminated against Plaintiff because of a disability.

Plaintiff thus fails to state a claim under the ADA or the Rehabilitation Act, and those claims are

dismissed for failure to state a claim on which relief may be granted.

discriminated against on the basis of disability in the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, or accommodations of any place of public

accommodation.” 42 U.S.C. § 12182(a).

5 In addition, Plaintiff seeks only money damages, which are not available for a violation

of Title III. See Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 86 (2d Cir. 2004) (“Monetary

relief, however, is not available to private individuals under Title III of the ADA.”).

F. Criminal statutes

Plaintiff alleges that Defendants committed various crimes or violated federal criminal

laws, and that she was the victim of a hate crime. She cannot, however, initiate the arrest and

prosecution of an individual because “the decision to prosecute is solely within the discretion of

the prosecutor.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff direct

prosecuting attorneys to initiate a criminal proceeding against Defendants, because prosecutors

possess discretionary authority to bring criminal actions, and they are “immune from control or

interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87

(2d Cir. 1972). Instead, criminal activity can be reported to authorities, who will then make a

determination about whether to prosecute. Accordingly, the Court dismisses Plaintiff’s claims

arising under 18 U.S.C. § 241, 242, and 1510; those alleging that Defendants engaged in criminal

activity; and the claim that she was the victim of a hate crime, for failure to state a claim on

which relief may be granted.

G. Ongoing proceedings

As noted, the status of Plaintiff’s state-court criminal proceedings is not clear. To the

extent that Plaintiff, in seeking a “speedy trial,” asks the Court to intervene in her pending state-

court criminal proceeding, the Court must dismiss the claim. In Younger v. Harris, 401 U.S. 37

(1971), the United States Supreme Court held that a federal court may not enjoin a pending state

court criminal proceeding in the absence of special circumstances suggesting bad faith,

harassment, or irreparable injury that is both serious and immediate. See Heicklen v. Morgenthau,

378 F. App’x 1, 2 (2d Cir. 2010) (quoting Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973)).

Federal courts generally abstain from intervening in state criminal proceedings “‘under the

principle known as comity [because] a federal district court has no power to intervene in the

internal procedures of the state courts.’” Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006)

(quoting Wallace v. Kern, 481 F.2d 621, 622 (2d Cir. 1973)).

Plaintiff does not allege any facts suggesting bad faith, harassment, or irreparable injury

in connection with any pending charges or proceedings. The Court therefore may not intervene in

that proceeding and dismisses Plaintiff’s claim for a “speedy trial,” or any other injunctive relief

arising from ongoing state court criminal proceedings, for failure to state a claim on which relief

may be granted.

H. State-law claims

A district court may decline to exercise supplemental jurisdiction of state law claims

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).

Because Plaintiff has been granted leave to file an amended complaint, the Court will

determine at a later stage whether to exercise its supplemental jurisdiction of any state law

claims she 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 AMEND

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.

2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has

cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.

USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege

additional facts to state valid claims of false arrest and excessive force under Section 1983, the

Court grants Plaintiff 60 days’ leave to amend his complaint to detail her claims.

Plaintiff is granted leave to amend her complaint to provide more facts solely about her

claims of false arrest and excessive force. In the “Statement of Claim” section of the amended

complaint form, Plaintiff must provide a short and plain statement of the relevant facts

supporting each claim against each defendant. If Plaintiff has an address for any named

defendant, Plaintiff must provide it. Plaintiff should include all of the information in the

amended complaint that Plaintiff wants the Court to consider in deciding whether the amended

complaint states a claim for relief. That information should include:

a) the names and titles of all relevant people;

b) a description of all relevant events, including what each defendant did or failed to do,

the approximate date and time of each event, and the general location where each

event occurred;

c) a description of the injuries Plaintiff suffered; and

d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory

relief.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated her

federally protected rights and how; when and where such violations occurred; and why Plaintiff

is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the

original complaint, any facts or claims that Plaintiff wants to include from the original complaint

must be repeated in the amended complaint.6

CONCLUSION

Plaintiff is granted leave to file an amended complaint, detailing the factual bases of her

excessive force and/or false arrest claims, that complies with the standards set forth above.

Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days

of the date of this order, caption the document as an “Amended Complaint,” and label the

document with docket number 23-CV-5078 (LTS). An Amended Complaint form is attached to

this order. No summons will issue at this time. If Plaintiff fails to comply within the time

allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed

for failure to state a claim upon which relief may be granted.

Plaintiff may receive court documents by email by completing the attached form, Consent

to Electronic Service.7

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. Cf.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

6 Plaintiff, or someone on Plaintiff’s behalf, has sent faxes directly to chambers. By

Standing Order, and my Individual Practice Rules, pro se litigants must file papers by submitting

them to the Pro Se Intake Unit. To submit a document for filing, Plaintiff must follow the Clerk’s

Office’s guidelines and procedures, which are available on the Court’s website under the section

PRO SE SELF REPRESENTATION, which can be found here: https://nysd.uscourts.gov/prose.

Any correspondence mailed, emailed, or faxed directly to chambers may be disregarded.

7 If Plaintiff consents to receive documents by email, Plaintiff will no longer receive court

documents by regular mail.

SO ORDERED.

Dated: April 15, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

CONSENT TO ELECTRONIC SERVICE

I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I

affirm that:

1. Ihave regular access to my e-mail account and to the internet and will check regularly for

Notices of Electronic Filing;

2. Ihave established a PACER account;

3. lIunderstand that electronic service is service under Rule 5 of the Federal Rules of Civil

Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper

copies of case filings, including motions, decisions, orders, and other documents;

4. [will promptly notify the Court if there is any change in my personal data, such as name,

address, or e-mail address, or if ] wish to cancel this consent to electronic service;

5. Iunderstand that I must regularly review the docket sheet of my case so that I do not miss a

filing; and

6. I understand that this consent applies only to the cases listed below and that if I file

additional cases in which I would like to receive electronic service of notices of documents, I

must file consent forms for those cases.

Civil case(s) filed in the Southern District of New York:

Please list all your pending and terminated cases to which you would like this consent to apply.

For each case, include the case name and docket number (for example, John Doe v. New City, 10-

CV-01234).

Name (Last, First, MI)

Address City State Zip Code

Telephone Number E-mail Address

Date Signature

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Civ. (i)

(In the space above enter the full name(s) of the plaintiff(s).) AMENDED

COMPLAINT

-against-

Jury Trial: O Yes oO No

ee (check one)

(dn the space above enter the full name(s) of the defendant(s). Ifyou

cannot fit the names of all of the defendants in the space provided,

please write “see attached” in the space above and attach an

additional sheet of paper with the full list of names. The names

listed in the above caption must be identical to those contained in

Part I. Addresses should not be included here.)

I. Parties in this complaint:

A. List your name, address and telephone number. If you are presently in custody, include your

identification number and the name and address of your current place of confinement. Do the same

for any additional plaintiffs named. Attach additional sheets of paper as necessary.

Plaintiff Name

Street Address ee

County, City.

State& ZipCode

Telephone Number eee

B. List all defendants. You should state the full name of the defendant, even if that defendant is a

government agency, an organization, a corporation, or an individual. Include the address where

each defendant may be served. Make sure that the defendant(s) listed below are identical to those

contained in the above caption. Attach additional sheets of paper as necessary.

Rev. 12/2009

Street Address _______________________________________________________

County, City _________________________________________________________

State & Zip Code ____________________________________________________

Telephone Number ____________________________________________________

Defendant No. 2 Name ___________________________________________________________

Street Address _______________________________________________________

County, City _________________________________________________________

State & Zip Code ____________________________________________________

Telephone Number ____________________________________________________

Defendant No. 3 Name ___________________________________________________________

Street Address _______________________________________________________

County, City _________________________________________________________

State & Zip Code ____________________________________________________

Telephone Number ____________________________________________________

Defendant No. 4 Name ___________________________________________________________

Street Address _______________________________________________________

County, City _________________________________________________________

State & Zip Code ____________________________________________________

Telephone Number ____________________________________________________

II. Basis for Jurisdiction:

Federal courts are courts of limited jurisdiction. 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 involving 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 and the amount in damages is more than $75,000 is a diversity of citizenship case.

A. What is the basis for federal court jurisdiction? (check all that apply)

Q Federal Questions Q Diversity of Citizenship

B. If the basis for jurisdiction is Federal Question, what federal Constitutional, statutory or treaty right

is at issue? _____________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

C. If the basis for jurisdiction is Diversity of Citizenship, what is the state of citizenship of each party?

Plaintiff(s) state(s) of citizenship ____________________________________________________

Defendant(s) state(s) of citizenship ____________________________________________________

______________________________________________________________________________

III. Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the

caption of this complaint is involved in this action, along with the dates and locations of all relevant events.

You may wish to include further details such as the names of other persons involved in the events giving

rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims,

number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.

A. Where did the events giving rise to your claim(s) occur?

B. What date and approximate time did the events giving rise to your claim(s) occur?

C. Facts)

| OE

you?

did

ee ee ee eee ee ee

as anyone ee

else

involved?

Who else Fee ee eee eee eee eee eee eee eee eee eee eee

saw what |

happened ? ee

IV. Injuries:

If you sustained injuries related to the events alleged above, describe them and state what medical

treatment, ifany, yourequired andreceived.

Rev. 12/2009

V. Relief:

State what you want the Court to do for you and the amount of monetary compensation, if any, you are

seeking, and the basis for such compensation.

I declare under penalty of perjury that the foregoing is true and correct.

Signed this _ day of ,20_.

Signature of Plaintiff □

Mailing Address

Telephone Number

Fax Number (ifyou have one)

Note: All plaintiffs named in the caption of the complaint must date and sign the complaint. Prisoners

must also provide their inmate numbers, present place of confinement, and address.

For Prisoners:

I declare under penalty of perjury thaton this =——s dayof ———“‘éc2zO Cd Lam delivering

this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for

the Southern District of New York.

Signature of Plaintiffs

Inmate Number ee