WalderBray v. New York City Police Dept. Precinct 33, et al., No. 1:2006cv04573 - Document 28 (S.D.N.Y. 2009)
Court Description: OPINION:#98168 Accordingly, Plaintiff's claims against the New York City Police Department Precinct 33 and the John Doe officers are dismissed. (Signed by Judge Robert W. Sweet on 10/15/09) (tro) Modified on 10/22/2009 (eef).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOCIJMENT ELECTRONICALLY FILED DOC #: DATE FILED: . C @\qqx I I EVELYN WALDERBRAY, Plaintiff, i1; Civ. 4573 OPINION NEW YORK CITY POLICE DEPARTMENT PRECINCT 33, ET AL. Defendants. A P P E A R A N C E S : Pro se I EVELYN WALDERBRAY 223 South Second Avenue Mount Vernon, NY 10550 Attorneys for Defendants ~ CORPORATION COUNSEL OF THE CITY OF N ~ W YORK ! 100 Church Street, 4th Floor New York, NY 10007 By: Katherine E. Smith, Esq. S w e e t , D.J. U.S.C. 5 1983, against, inter alia, the New Yo Police Department Precinct 33 (the "NYPD") and Doe police officers (collectively, the "Defend alleging false arrest and excessive force. D have moved to dismiss Plaintiff's claims again as well as the John Doe officers. Ii For the rea ons set forth below, the motion is granted. I Background This action was commenced on June 14, 2006, by the filing of the Complaint. The Court dismisbed Plaintiff's Amended Complaint, filed on April an opinion dated March 14, 2009. 1 3, 2007, in Police Dep't Precinct 33, et al., 2009 WL 691038 (S.D.N.Y. Mar. 17, Opinion"). WalderBray was also granted leave 1 o file a Second Amended Complaint, which she did on ~ u l k 2009, 7, f On J u l y 2 4 , 2 0 0 9 , t h e C i t y of New Yc k, on b e h a l f of Defendants, s u b m i t t e d a l e t t e r s e e k i n g d i s r s a l of P l a i n t i f f ' s c l a i m s a g a i n s t a l l m u n i c i p a l defer n t s and John Doe o f f i c e r s , which t h e Court t r e a t e d a s motion t o dismiss. The motion was marked f u l l y s u b m i t t t September 2, 2009. WalderBrayls Claims Against Defendants Are Di! During t h e C o u r t ' s i n i t i a l conferenc with t h e p a r t i e s , P l a i n t i f f was p e r m i t t e d t o amend h e r s u b s t i t u t e t h e C i t y of New York f o r "New York .ty Police Department, P r e c i n c t 3 3 , " i n l i g h t of t h e wel. p r i n c i p l e t h a t t h e N w York C i t y P o l i c e Depar' e suable e n t i t y . I See, e . g . , E a s t Coast Novelty In addressing the present motion, the Court is mindfu: is proceeding pro se and that her submissions are held stringent standards than formal pleadings drafted by l i Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v U.S. 519, 520 (1972)). The courts "construe the plead. plaintiff liberally and interpret them to raise the st: they suggest." Fuller v. Armstrong, 204 F. App'x 987, 2006); see also Lerman v. Bd. of Elections in City of 1 135, 139-40 (2d Cir. 2000) ("Since most pro se plainti familiarity with the formalities of pleading requireme1 construe pro se complaints liberally, applying a more to evaluate their sufficiency than we would when revie~ submitted by counsel."). However, "pro se status 'doe: Dartv from com~liancewith relevant rules of ~rocedura. law.'" Triestman v. Fed. Bureau of Prisons, 470 F. 3d 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Ci ?nt i s not a . , I n c . v. hat WaldetBray "less ers ." w, 404 s of a pro se gest arguments 8 (2d Cir. - 232 F.3d lack , we must xible standard g a compldint ot exempt a nd substantive , 477 (2d Cir. 1983)) . . . . . :I1 City of N.Y., 781 F. Supp. 999, 1010 (S.D.N.Y.1 9 9 2 ) Despite this earlier exchange, Plaintiff's Sec ld Amended I Complaint again names the New York City Police Ilepartment Precinct 33 as a defendant. However, even assuming that the Cour permitted WalderBray to amend the Second Amended Complai : to substitute the City of New York as a defendant her claims would fail for the same reasons laid out in tt March Opinion. To hold a municipal entity liable ur -r 5 1983 for the unconstitutional acts of its employees a plaintiff must allege that the municipal employees' acti 1s were the result of an official policy, custom, or pract ze of the municipal defendant, and that the policy, cust n, or practice caused the plaintiff's alleged injuri s. See - Monell v. Dep't of Soc. Servs., 436 U.S. 658, 30-91 (1978). Plaintiff's Second Amended Complaint ses not allege any facts that point to any such policy 3r practice, and therefore any claims alleged against the C ty of New York would also be dismissed. Further, because the three year stat te of limitations for claims brought pursuant to S 1 83 has expired, Plaintiff's attempts to identify and erve any John Doe officers would be futile. See Pearl 9. City of I i Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (no ing that t "[iln section 1983 actions, the applicable lim tations period is found in the 'general or residual [state] statute I [of limitations] for person injury actions,' w ich is three years in New York) (quoting Owens v. Okure, 48 U.S. 235, 249-50 (1989)). According to the Second Amend d Complaint, Plaintiff was falsely arrested and subject to force on February 11, 2005, and therefore her klaims began to accrue at that time. F.2d 185, 191 (2d Cir. accrual [as] that point has reason to know of the injury which is the I asis of his action." (internal quotations and citation omi ted)). A I plaintiff is only permitted to amend a complaiht to add a I party after the expiration of the statute of limitations if the amendment would 'relate back" to the date on which the I original complaint was filed. Fed. R. Civ. P. 15 (c); Young-Flynn v. Kelly, 234 F.R.D. 70, 73-74 (S. .N.Y. 2006). In these circumstances, relation back would no appropriate since the '"newly-added defendants were not named originally because the plaintiff did not know their I identities,'" and therefore were not on notice pending action against them. Tapia-Ortiz v. be, 171 F.3d I 150, 152 (2d Cir. 1 9 9 9 ) (quoting Barrow v. Wet ersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1 9 9 5 ) :per curiam) . Accordingly, Plaintiff's claims agai 1st the New York City Police Department Precinct 33 and th ! John Doe officers are dismissed. It is so ordered. New York, NY October 2009 & I.D.J.
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