Lewis v. NYS Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Luchiano Lewis and Luchiana Owens,

Plaintiffs, MEMORANDUM & ORDER

25-CV-01050 (DG) (CLP)

-against-

NYC Police Department, et al.,

Defendants.

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DIANE GUJARATI, United States District Judge:

Plaintiff Luchiano Lewis (“Plaintiff”), proceeding pro se and then incarcerated at Marcy

Correctional Facility in Marcy, New York, filed this action pursuant to 42 U.S.C. § 1983

(“Section 1983”) against Defendants NYC Police Department, Board of Corrections, Attorney

General’s Office, New York Post (newspaper), NYS Supreme Court, Crossroads Juvenile

Center, ABC News, CBS, and Daily News in the United States District Court for the Western

District of New York. See Complaint (“Compl.”), ECF No. 1.1 The action subsequently was

transferred to the United States District Court for the Eastern District of New York. See ECF

Nos. 5, 6; see generally docket.

Pending before the Court is Plaintiff’s Motion for Leave to Proceed in forma pauperis.

See ECF No. 2.2 The Court grants Plaintiff’s request to proceed in forma pauperis and, for the

1 Although the Complaint also lists Luchiana Owens as a Plaintiff, see Compl. at 1, 8, Luchiana

Owens has not paid the filing fee or filed an application to proceed in forma pauperis. See

generally docket; see also ECF Nos. 3, 5. Any claim intended to be brought on behalf of

Luchiana Owens is dismissed without prejudice.

When citing to the Complaint, the Court uses the page numbers generated by the Court’s

electronic case filing system (“ECF”).

2 In light of Plaintiff’s pro se status, the Court liberally construes Plaintiff’s filings in this action.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

reasons set forth below, dismisses the Complaint in its entirety and grants Plaintiff leave to file

an Amended Complaint by June 23, 2025.

BACKGROUND

The Complaint brings two claims pursuant to Section 1983. See Compl. at 6-7. The First

Claim is brought against Defendants NYC Police Department, Crossroads Juvenile Center, and

Board of Corrections, based on “discrimination, due diligence, due process, failure to protect,

deliberate indifference.” See Compl. at 6.3 The Second Claim is brought against Defendants

ABC News, Daily News, and CBS, based on “discrimination, due process, failure to protect,

deliberate indifference, hate crime.” See Compl. at 7.4

Plaintiff alleges with respect to the First Claim:

They publicized a picture of me and my family without our consent. And with

doing such action put my life in danger. And having knowledge of my age I

should of never been put on t.v. at all. And under their jurisdiction they are to get

documents signed by a guardian if the person is under 18 yrs old. And by saying

statements of my case and speaking bad about me discriminating my life and

endangering me. And it’s to this day they are giving pictures and my case to

news people and others without my family’s consent at all.

See Compl. at 6.

Plaintiff alleges with respect to the Second Claim:

After I was convicted the news without my family’s consent broadcasted on

National media about my charges. And having knowledge of me being a minor

and put me in jeopardy for my life and family. They completely humiliated me

and refused to get any consents or any permissions to do such actions. And at no

3 For ease of readability, when quoting from the Complaint, the Court has not in all instances

retained the Complaint’s original capitalization, punctuation, and/or spelling. Alterations are

not material.

4 Notwithstanding that Plaintiff names as Defendants Attorney General’s Office, NYS Supreme

Court, and New York Post (newspaper), see Compl. at 1-3, he does not reference these

Defendants in connection with either the First Claim or the Second Claim, see Compl. at 6-7.

The Court therefore does not construe the Complaint to be bringing either the First Claim or

the Second Claim as against these Defendants.

time did they ask for permission to use my identity.

See Compl. at 7.

Plaintiff summarizes the relief requested as follows:

I’m requesting that I be awarded $80 million due to slandering and wrongfully

placing my picture everywhere without my consent. And I request that it be

removed permanently. And my family gets compensated for discrimination.

See Compl. at 8.

STANDARD OF REVIEW

To survive dismissal for failure to state a claim, a complaint must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v.

Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

In reviewing a pro se complaint, a court must be mindful that the plaintiff’s pleadings

“must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also,

e.g., Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that, “[e]ven after Twombly,” courts

“remain obligated to construe a pro se complaint liberally”).

The Prison Litigation Reform Act (“PLRA”) requires a district court to screen civil

complaints brought by a prisoner against a governmental entity or against an officer or employee

of a governmental entity, see 28 U.S.C. § 1915A(a), and requires a district court to dismiss a

plaintiff’s complaint if it: “(1) is frivolous, malicious, or fails to state a claim upon which relief

may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief,”

see 28 U.S.C. § 1915A(b). The in forma pauperis statute requires courts to dismiss for the same

reasons. See 28 U.S.C. § 1915(e)(2)(B); see also Abbas v. Dixon, 480 F.3d 636, 639-40 (2d Cir.

2007) (applying both § 1915A and § 1915(e)(2) to a prisoner’s complaint in a case in which the

prisoner proceeded in forma pauperis).

When conducting the review required by the PLRA and the in forma pauperis statute, a

court must “accept all ‘well-pleaded factual allegations’ in the complaint as true.” See Lynch v.

City of N.Y., 952 F.3d 67, 74-75 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 679); see also Larkin

v. Savage, 318 F.3d 138, 139 (2d Cir. 2003) (noting that a court must “accept all of the facts

alleged in the complaint as true and draw all inferences in the plaintiff’s favor” when reviewing a

complaint pursuant to 28 U.S.C. § 1915A); Leybinsky v. Iannacone, No. 97-CV-05238, 2000 WL

863957, at *1 (E.D.N.Y. June 21, 2000) (noting that “[f]or purposes of considering a dismissal

under 28 U.S.C. § 1915(e)(2), the allegations in the complaint must be taken as true”). “Even in

a pro se case, however, although a court must accept as true all of the allegations contained in a

complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quotation omitted).

DISCUSSION

As set forth below, Plaintiff’s Complaint, even liberally construed, fails to state a claim

upon which relief may be granted and must therefore be dismissed in its entirety.

Section 1983 “provides ‘a method for vindicating federal rights elsewhere conferred,’

including under the Constitution.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).5 To sustain a claim brought under Section

1983, “[t]he conduct at issue ‘must have been committed by a person acting under color of state

law’ and ‘must have deprived a person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.’” Id. (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d

Cir. 1994)). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely

private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 50 (1999) (quotation omitted).

In certain limited circumstances, private individuals and entities can be considered to be

acting under color of state law in the context of Section 1983. See Fabrikant v. French, 691 F.3d

193, 206-07 (2d Cir. 2012) (discussing tests courts use to identify state actions and state actors in

the Section 1983 context and stating that “[t]he fundamental question under each test is whether

the private entity’s challenged actions are ‘fairly attributable’ to the state” (quoting Rendell-

Baker v. Kohn, 457 U.S. 830, 838 (1982))). Here, however, Plaintiff has not, inter alia, plausibly

alleged that Defendants ABC News, Daily News, and CBS acted under color of state law – he

has not plausibly alleged that their actions are fairly attributable to the state. See generally

Compl.; see also Salis v. Dopico, No. 23-CV-01816, 2024 WL 1282476, at *6 (E.D.N.Y. Mar.

26, 2024) (noting that “it is well-established that actions by journalists in publishing a newspaper

article do not constitute the requisite ‘state action’ to support state action claims” (quotation

5 In pertinent part, 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

omitted)), aff’d, No. 24-1066-cv, 2025 WL 880407 (2d Cir. Mar. 21, 2025). Because Plaintiff

has not plausibly alleged that Defendants ABC News, Daily News, and CBS acted under color of

state law, the Second Claim is dismissed for failure to state a claim upon which relief may be

granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

The First Claim also must be dismissed because Defendants NYC Police Department,

Crossroads Juvenile Center, and Board of Corrections are not suable entities. See Emerson v.

City of N.Y., 740 F. Supp. 2d 385, 395-96 (S.D.N.Y. 2010) (noting that “a plaintiff is generally

prohibited from suing a municipal agency” and that “[i]nstead, the City is generally the proper

defendant when a plaintiff seeks to bring an action pursuant to the official acts and/or inaction of

an agency of the City” and citing Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d

Cir. 2008) and N.Y. City Charter, ch. 17 § 396); El Dey v. Bd. of Corr., No. 22-CV-02600, 2022

WL 2237471, at *6 (S.D.N.Y. June 22, 2022) (noting that New York City Board of Correction,

as an agency of the City of New York, is not an entity that may be sued); Antonetti v. City of

N.Y., No. 20-CV-05109, 2022 WL 1105172, at *2 (E.D.N.Y. Apr. 13, 2022) (noting that a New

York Police Department precinct cannot sue or be sued); Livingston v. City of N.Y., 563 F. Supp.

3d 201, 232 (S.D.N.Y. 2021) (noting that Crossroads Juvenile Center is a facility operated by the

New York City Administration for Children’s Services and that “neither is a suable entity”).

Because Defendants NYC Police Department, Crossroads Juvenile Center, and Board of

Corrections are not suable entities, the First Claim is dismissed for failure to state a claim upon

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

* * *

In light of Plaintiff’s pro se status and out of an abundance of caution, the Court grants

Plaintiff leave to file an Amended Complaint by June 23, 2025. See, e.g., Banks v. Schumer,

No. 15-CV-01078, 2015 WL 1928795, at *1 (E.D.N.Y. Apr. 28, 2015) (citing Gomez v. USAA

Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999)). To the extent that Plaintiff files an

Amended Complaint alleging Section 1983 claims, such Amended Complaint must, inter alia,

sufficiently allege action under color of state law. Plaintiff is advised that any Amended

Complaint will replace entirely the current Complaint. Thus, any fact included in the current

Complaint that Plaintiff seeks to have the Court consider when reviewing the Amended

Complaint must also be contained in the Amended Complaint. The Amended Complaint must

be captioned “AMENDED COMPLAINT” and bear the same docket number as this Order: 25-

CV-01050.

CONCLUSION

Plaintiff’s Motion for Leave to Proceed in forma pauperis, ECF No. 2, is granted.

For the reasons set forth above, the Complaint, ECF No. 1, is dismissed in its entirety.

See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1).

Plaintiff is granted leave to file an Amended Complaint by June 23, 2025. If Plaintiff

fails to file an Amended Complaint by June 23, 2025, judgment dismissing this action shall be

entered.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

would not be taken in good faith and therefore denies in forma pauperis status for the purpose of

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

The Clerk of Court is directed to mail a copy of this Order to Plaintiff.

SO ORDERED.

/s/ Diane Gujarati __

DIANE GUJARATI

United States District Judge

Dated: June 2, 2025

Brooklyn, New York