# John

> District Court, E.D. New York · October 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11176021

## Case

- **Full name:** Leroy John v. NYPD
- **Court:** District Court, E.D. New York
- **Decided:** October 22, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11176021

## How later opinions describe it (automated extraction)

- holding that New York’s three-year statute of limitations applies to both Section 1983 and Bivens claims

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11176021. Public record. Not legal advice.