John

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LEROY JOHN,

Plaintiff,

MEMORANDUM AND ORDER

-against- 25-CV-3879 (OEM) (MMH)

NYPD,

Defendant.

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ORELIA E. MERCHANT, United States District Judge:

On July 7, 2025, Plaintiff Leroy John (“Plaintiff”) filed this pro se civil rights action against

Defendant the New York City Police Department (“NYPD”). See generally Complaint for

Violation of Civil Rights (“Compl.” or “Complaint”), Dkt. 1. That same day, Plaintiff also moved

for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. See generally Application

to Proceed in District Court Without Prepaying Fees or Costs (“IFP Mot.”), Dkt. 2.1 For the

reasons stated below, the Court dismisses Plaintiff’s Complaint and grants his request to proceed

in forma pauperis solely for the limited purpose of dismissing the Complaint.

BACKGROUND

Plaintiff alleges that in the “summer of 2016” at the NYPD’s 83rd Precinct in Brooklyn:

[W]hile waiting for a police escort at the precin[c]t [I] was told to leave out[side]

and wait where [I] have a[n] order [of] protection. I responded[,] [“I] don[’]t think

[I] should for my saf[e]ty.[”] I [r]esponded again, [and] the police pointed a gun at

my face, where my order [of] protection was located. [S]peaking in term[s] (for

example) if a gun was pointed in your face would you feel safe[?] [W]ith that being

said [I] was arrested in the precin[c]t and was now then facing a terrorist charge

against the NYPD[.] I took the charge to trial and was found not guilty.

Dis[]missed [i]ndictments.

Compl. at 2, 5.

1 Plaintiff is currently incarcerated at Rikers Island. See IFP Mot. at 1.

Based on these allegations, Plaintiff asserts claims against the NYPD for violation of

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

(“Bivens”),2 and 42 U.S.C. § 1983 (“Section 1983”). Under Section 1983, Plaintiff asserts that the

NYPD violated his Eighth Amendment rights, was negligent, and intentionally inflicted emotional

distress. Compl. at 4. Under Bivens, Plaintiff contends that the NYPD further violated his Sixth

Amendment rights and that he experienced ineffective assistance of counsel. Id. Plaintiff requests

damages in the amount of “40 Billion Because I am a Trademark or 100 million because of

negligence of life or Whats required.” Id. at 6.

LEGAL STANDARD

When reviewing an action filed in forma pauperis, the Court must dismiss a complaint sua

sponte if it determines that the suit “(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.” 28 U.S.C. § 1915(e)(2)(B). A complaint fails to state a claim on which relief may be

granted where it does not 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., 631 F.3d 57, 63 (2d Cir. 2011)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the

complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S.

at 678. In reviewing a pro se complaint, the Court is mindful that a plaintiff’s pleadings “must be

held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

2 In the “Basis for Jurisdiction” portion of Plaintiff’s form Complaint, Plaintiff was asked whether he is bringing suit

under Section 1983, Bivens, or both. Compl. at 4. In response, Plaintiff solely checked the box indicating Bivens. Id.

However, below that question, Plaintiff completed additional questions pertaining to both Section 1983 and Bivens.

Id. Construing Plaintiff’s complaint liberally, this Court addresses both.

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

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“Even after Twombly,” the Court “remain[s]

obligated to construe a pro se complaint liberally.” (citations omitted)).

DISCUSSION

A. The NYPD Is Not a Proper Defendant.

As a threshold issue, Plaintiff may not sue the NYPD. The New York City Charter provides

that “[a]ll actions or 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. Charter § 396 (emphasis added); see Jenkins v. City of New York, 478

F.3d 76, 93 n.19 (2d Cir. 2007) (“[T]he NYPD is a non-suable agency of the City.” (citation

omitted)); Slade v. City of New York, 24-cv-06711 (NCM) (JAM), 2024 WL 5057647, at *3

(E.D.N.Y. Dec. 10, 2024) (“Plaintiff sues the NYPD for allegedly violating his civil rights.

However, the NYPD is not a suable entity.”). Because the Complaint solely alleges violations

caused by the NYPD, it must be dismissed on that basis alone.

B. Plaintiff Fails to State a Claim Under Bivens.

Additionally, Plaintiff’s Complaint must be dismissed because it does not state a plausible

Bivens claim. “A plaintiff bringing a claim under Bivens must allege that he has been deprived of

a constitutional right by a federal agent acting under color of federal authority.” Thomas v.

Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (footnote omitted) (citing Bivens, 403 U.S. at 389).

Bivens claims arising in New York must be brought within three years. See Tapia-Ortiz v. Doe,

171 F.3d 150, 151 (2d Cir. 1999) (per curiam) (citing Owens v. Okure, 488 U.S. 235, 251 (1989));

Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987) (holding that New York’s three-year statute of

limitations applies to both Section 1983 and Bivens claims).

Plaintiff’s Bivens claim fails for several reasons. First, the events giving rise to Plaintiff’s

suit took place during “[t]he summer of 2016,” approximately nine years ago. Compl. at 5.

Although the statute of limitations may be equitably tolled under some circumstances, such tolling

is only warranted where a litigant demonstrates as a factual matter that “some extraordinary

circumstance stood in [her] way” and “that [she] has been pursuing [her] rights diligently.” Doe

v. United States, 76 F.4th 64, 71 (2d Cir. 2023) (alterations in original) (quoting A.Q.C. ex rel.

Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011)). Because Plaintiff has not asserted

any allegations as to why his claim should be tolled, Plaintiff’s Bivens claim is time-barred.

Second, Bivens solely applies to violations allegedly committed by federal, not state,

officers. See Bivens, 403 U.S. at 389 (addressing “whether violation of [the Fourth Amendment]

by a federal agent acting under color of his authority gives rise to a cause of action for damages

consequent upon his unconstitutional conduct”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70

(2001) (“The purpose of Bivens is to deter individual federal officers from committing

constitutional violations.” (emphasis added)). In addition to naming solely the NYPD, which

cannot be sued, Plaintiff’s Complaint fails to put forward any allegations of violations committed

by federal, rather than state, officers.

Finally, even if Plaintiff did allege action by federal officers, the Complaint still fails to

state a Bivens claim because ineffective assistance of counsel claims are inherently at odds with

Bivens. Defense counsel, even court-appointed defense counsel, do not act under color of federal

law. See, e.g., Style v. McGuire, 3:17-cv-00502(SRU), 2017 WL 3841647, at *3 (D. Conn. Sept.

1, 2017) (collecting cases and holding that an appointed federal public defender was not a “‘person’

acting under color of state or federal law for purposes of stating a claim under section 1983 or

Bivens”).

Here, Plaintiff solely states that he was “facing a terrorist charge against the NYPD” for

which he was subsequently acquitted. Compl. at 5. This threadbare assertion does not to create a

plausible claim of ineffective assistance of counsel. Nor does it, for that matter, plausibly allege a

violation of any of the other, related trial rights contained within the Sixth Amendment. See U.S.

CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for

his defence.”).

C. Plaintiff Fails to State a Claim Under Section 1983.

Lastly, Plaintiff’s Complaint must be dismissed because it does not plead enough facts to

plausibly allege a Section 1983 claim. In relevant part, Section 1983 states: “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 . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”

Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States Constitution and federal statutes that it

describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). As with Bivens, Section 1983

claims arising in New York must be asserted within three years, see Patterson v. County of Oneida,

375 F.3d 206, 225 (2d Cir. 2004), but may be tolled in “rare and exceptional circumstances” where

a party acted with “reasonable diligence throughout the period he sought to toll” and “was

prevented from timely performing a required act,” Jones v. City of New York, 846 F. App’x 22, 24

(2d Cir. 2021) (quoting Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)).

Plaintiff’s Section 1983 claim fails for several reasons. First, the events allegedly happened

approximately nine years ago, and Plaintiff has alleged no basis for equitable tolling. See, e.g.,

Bailey v. Grant, No. 24-CV-6044 (RER) (SJB), 2024 WL 4836340, at *1 (E.D.N.Y. Nov. 20,

2024) (dismissing a plaintiff’s complaint as time-barred where he filed his Section 1983 claim

beyond the three-year statute of limitations and failed to allege a basis for equitable tolling).

Second, Plaintiff stakes his Section 1983 claim on improper sources of substantive law.

Plaintiff claims the NYPD violated his rights under the Eight Amendment, was negligent, and

intentionally inflicted emotional distress. Compl. at 4. But the Eighth Amendment “was designed

to protect those convicted of crimes,” not those who have yet to be convicted. Ingraham v. Wright,

430 U.S. 651, 664 (1977) (emphasis added); U.S. CONST. amend. VIII (“Excessive bail shall not

be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

Plaintiff’s allegations exclusively pertain to a pre-conviction time period. Compl. at 5.

Similarly, Section 1983 solely creates a cause of action for violations of federal, not state,

law. See Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) (“Clearly, a violation of state law

is not cognizable under § 1983.” (emphasis added) (citing Davis v. Scherer, 468 U.S. 183, 194-95

(1984)). Because negligence and intentional infliction of emotional distress are governed by state

common law, Section 1983 is not available as a means of bringing those claims.

Even assuming Plaintiff intended to allege a Sixth Amendment ineffective assistance of

counsel violation pursuant Section 1983, instead of Bivens, see Compl. at 4, his allegations still

fail for the reasons stated above.

CONCLUSION

Accordingly, Plaintiff’s action is dismissed for failure to state a claim upon which relief

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

Further, the Court denies Plaintiff leave to amend. Although pro se plaintiffs should

generally be granted at least one opportunity to amend, leave to amend is not required where

amendment would be futile. See Johnson v. N.Y.C. Police Dep’t, 651 F. App’x 58, 61 (2d Cir.

2016) (citations omitted). Here, amendment would be futile because Plaintiff’s allegations exceed

the relevant statutes of limitations for Bivens and Section 1983 claims and fail to establish the state

action necessary for both claims. See, e.g., id. (denying leave to amend where the plaintiff filed

Section 1983 “well after the three-year statute of limitations expired”); Harrison v. New York, 95

F. Supp. 3d 293, 305-06 (E.D.N.Y. 2015) (“[L]eave to amend is often futile when a claim is

dismissed based on certain substantive grounds, including sovereign immunity, the expiration of

the statute of limitations, or the lack of state action requisite for a Section 1983 claim.” (citations

omitted)).

The Clerk of Court is respectfully directed to enter judgment dismissing this action, mail a

copy of the judgment and this Memorandum and Order to Plaintiff, note the mailing on the docket,

and close this case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and, therefore, denies in forma pauperis status for the purpose of any appeal.

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

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

October 22, 2025

Brooklyn, New York