noting the “well established tradition of police discretion” and that “serving of public rather than private ends is the normal course of the criminal law.”
How later courts described this case
- noting the “well established tradition of police discretion” and that “serving of public rather than private ends is the normal course of the criminal law.”
- “While we construe pro se pleadings liberally, the basic requirements of Rule 8 apply to self-represented and counsel alike.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------x
THERESA ANN HANKERSON,
Plaintiff, MEMORANDUM AND ORDER
24-CV-1623 (LDH) (LB)
-against-
61 PCT.; PSHA1 PCT, Brooklyn, New
York Kings; DT. DESERTO, Police Officer,
Defendants.
-----------------------------------------------------------x
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Theresa Ann Hankerson brings this pro se action invoking the Court’s subject
matter jurisdiction under 28 U.S.C. § 1331.1 ECF No. 1, (“Compl.”). The Court grants Plaintiff’s
request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 2. For the following
reasons, the Complaint is dismissed, and Plaintiff is granted thirty days to file an amended
complaint.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” At the pleadings stage of the proceeding, the Court must assume the truth of
“all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Furthermore, it is axiomatic that pro se
1 The action was transferred to this court from the United States District Court for the Southern District of New
York on March 5, 2024. ECF No. 5.
complaints are held to less stringent standards than pleadings drafted by attorneys and the Court
is required to read the plaintiff's pro se complaint liberally and interpret it to raise the strongest
arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9
(1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
However, the Supreme Court has held that a district court has “the authority to ‘pierce the
veil of the complaint’s factual allegations’” when considering an in forma pauperis complaint.
Denton v. Hernandez, 504 U.S. 25, 32 (1992). The Court further stated that “a court is not bound
. . . to accept without question the truth of the plaintiff’s allegations. We therefore reject the
notion that a court must accept ‘as having an arguable basis in fact,’ all allegations that cannot be
rebutted by judicially noticeable facts.” Id.
DISCUSSION
Plaintiff’s complaint is difficult to understand, and it is unclear what her federal cause of
action is against the named defendants. The best the Court can ascertain is that Plaintiff is
complaining about being harassed by a neighbor and that the police have failed to take proper
action. Plaintiff states
I’m going threw [sic] community bullying with these cops I had put in a few
report FTC police reports of 2023 9/2023 10/2023 about Desiree Ellis she
came after me . . .. She has here [sic] son and friends helping her, I had put this
on report I’ve been communicating with detective about the case . . ..
Compl. at 2. Plaintiff seeks, “transfer to move order of protection.” Id.
Rule 8
Federal Rule of Civil Procedure 8(a) provides that “[a] pleading that states a claim for
relief must contain” a “short and plain statement of the grounds for the court’s jurisdiction” and
“a short and plain statement of the claim showing that the pleader is entitled to relief.” Those
statements must “give the defendant fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). This applies to pro se
plaintiffs as well. Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir. 2019) (“While we construe
pro se pleadings liberally, the basic requirements of Rule 8 apply to self-represented and counsel
alike.”) (internal quotations omitted). “When a complaint does not comply with the requirement
that it be short and plain, the court has the power, on its own initiative, . . . to dismiss the
complaint.” Id. Even giving the most liberal construction to Plaintiff’s Complaint, see Haines v.
Kerner, 404 U.S. 519, 520 (1972), the Complaint clearly does not comply with Rule 8(a). As
such, the Complaint must be dismissed.
Claim against Police Precincts
To the extent Plaintiff seeks to bring a claim against a police precinct her claim fails
because city agencies are not generally suable entities. The New York City Charter provides that
“[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.” N.Y.C. Admin. Code & Charter Ch. 17 § 396. See Wingate v. City
of New York, No. 08 CV. 217, 2008 WL 203313, at *2 (E.D.N.Y. Jan. 23, 2008) (police precinct
is not a suable entity).
Police Investigations
Finally, to the extent Plaintiff alleges that police failed to investigate her complaints,
Plaintiff’s claims must be dismissed. Police officers have discretion to conduct investigations
and initiate arrests and are charged with acting for the benefit of the public, not private citizens.
See Kneitel v. Rose, No. 19-CV-3742, 2019 WL 3804678, at *2 (E.D.N.Y. Aug. 13, 2019) (citing
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 760, 765 (2005) (noting the “well
established tradition of police discretion” and that “serving of public rather than private ends is
the normal course of the criminal law.”). Therefore, “police officers have no affirmative duty to
investigate complaints, as the government and its agents are under no general duty to provide
public services or protection to individual citizens.” Morris v. City of N.Y., No. 14-CV-1749-JG-
LB, 2015 WL 1914906, at *5 (E.D.N.Y. Apr. 27, 2015) (citing DeShaney v. Winnebago Cnty.
Dep't of Soc. Servs., 489 U.S. 189, 197 (1989)).
LEAVE TO AMEND
If a “liberal reading of the complaint gives any indication that a valid claim might be
stated,” a pro se plaintiff should be given an opportunity to amend the complaint. Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Shomo v. City of New York, 579 F.3d 176, 183
(2d Cir. 2009). Here, in light of this Court’s duty to liberally construe pro se complaints, and in
an abundance of caution, the Court will allow Plaintiff to file an amended complaint in
compliance with Rule 8(a) of the Federal Rules of Civil Procedure. Cruz v. Gomez, 202 F.3d 593
(2d Cir. 2000).
If she chooses to file an amended complaint, Plaintiff must identify each legal claim and
set forth a short, plain statement of the relevant facts supporting the claim. Plaintiff should
describe what each named defendant or defendants did or did not do, and how each defendant
caused Plaintiff injury, and only name defendants that were personally involved. Plaintiff must
also provide the dates and locations for each relevant event.
The amended complaint will replace, not supplement, the original complaint, and must be
captioned as “Amended Complaint” and include the same docket number as this Order: 24-CV-
1623 (LDH) (LB).
CONCLUSION
The Complaint, filed in forma pauperis, is dismissed. 28 U.S.C. § 1915(e)(2)(B). Plaintiff
is granted thirty days to file an amended complaint.
For free, confidential, limited-scope legal assistance, Plaintiff may wish to contact the
City Bar Justice Center’s Federal Pro Se Legal Assistance Project in Brooklyn by calling (212)
382-4729.
Any amended complaint that Plaintiff elects to file will be reviewed for sufficiency. No
summons shall issue at this time and all further proceedings shall be stayed. If Plaintiff fails to
amend the complaint, or cure the deficiencies discussed herein, judgment shall be entered.
The Clerk of Court is directed to mail a copy of this Memorandum and Order to Plaintiff,
along with a general complaint form.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for the purpose of any appeal.
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
/s/ LDH__________________
LaShann DeArcy Hall
United States District Judge
Dated: Brooklyn, New York
April 15, 2024