Malave-Sykes v. Endicott Police Department

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ JOSHUA MALAVE-SYKES, Plaintiff, vs. 3:23-CV-1215 (MAD/ML) ENDICOTT POLICE DEPARTMENT, OFFICER E. RIEGEL, LINDA JACKSON, and JESSICA A. HINKLE, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: JOSHUA MALAVE-SYKES Delaware Avenue Apt. No. 245 Endicott, New York 13760 Plaintiff, pro se Mae A. D'Agostino, U.S. District Judge: ORDER On September 28, 2023, Plaintiff Joshua Malave-Sykes commenced this action, pro se, by filing a complaint, a motion to proceed in forma pauperis ("IFP"), and a motion for an order to show cause for a temporary restraining order or preliminary injunction. See Dkt. Nos. 1, 2, 4. On October 2, 2023, Plaintiff filed a supplemental affidavit. See Dkt. No. 7. On October 3, 2023, he filed a letter in support of his motion for an order to show cause and a motion to obtain an Electronic Case Filing ("ECF") login and password. See Dkt. Nos. 8, 9. Plaintiff's complaint, motion for an order to show cause, and supplemental documents relate to his state court arrest and criminal charge for strangulation by the Endicott Police Department. See Dkt. Nos. 1, 4, 7, 8.

On October 17, 2023, Magistrate Judge Miroslav Lovric issued an Order and Report- Recommendation granting Plaintiff's IFP motion, denying Plaintiff's request for an ECF login, and recommending that Plaintiff's complaint be dismissed with leave to amend and his motion for an order to show cause be denied. See Dkt. No. 10.

Plaintiff filed objections to the Order and Report-Recommendation and two additional letters. See Dkt. Nos. 12, 13, 14. As Plaintiff is proceeding pro se, the Court must review his filings under a more lenient standard. See Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003). The Court must "make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, "a document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, 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)). "Although the court has the duty to show liberality towards pro se litigants, . . . there is a responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas, 848 F. Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge," the Court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

A. Plaintiff's Complaint Plaintiff's objections to Magistrate Judge Lovric's Order and Report-Recommendation reiterate the arguments and contentions he presented in his complaint, motion for an order to show cause, and additional letters to the Court. See Dkt. Nos. 1, 4, 7. Plaintiff restates that his due process rights have been violated because false state criminal charges were brought against him, and the Endicott Police Department is discriminating against him because he is a Black male. See Dkt. No. 12 at 16-18, 22-24.1 Plaintiff contends that he was not the initial aggressor in the altercation with Defendant Hinkle which led to the criminal charges and that he has suffered deprivations of liberty and property as a result of Defendant Hinkle's and the Police Department's conduct. See id. These assertions were all considered and rejected by Magistrate Judge Lovric.

See Dkt. Nos. 1, 4, 7, 10. As Plaintiff does not raise specific objections to the Order and Report- Recommendation and instead merely reiterates the information already before the Court, it will review the Order and Report-Recommendation for clear error.

Having reviewed the October 17, 2023, Order and Report-Recommendation, Plaintiff's complaint, and the applicable law, the Court does not discern any clear error. Magistrate Judge Lovric correctly determined that (1) Defendant Hinkle is not a state actor and cannot be sued pursuant to 42 U.S.C. § 1983, see Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (citation

In his objections, "Plaintiff acknowledges the Court's interpretation of unable to interfere in on [sic] criminal proceeding . . . ." Dkt. No. 12 at 2. He also explains the ways in which a private actor could be considered a state actor for the purposes of § 1983 liability. See id. at 19- 21. Despite acknowledging these issues, Plaintiff fails to explain how his complaint overcomes either hurdle. See generally id. Plaintiff cannot bring a claim against a private person under § 1983 and he does not allege in his complaint that the police compelled Defendant Hinkle's conduct, that they engaged in a conspiracy, or that Defendant Hinkle was performing actions that are typically performed by the state. See Dkt. No. 1; see also Baez v. JetBlue Airways, 745 F. Supp. 2d 214, 221 (E.D.N.Y. 2010) (citation and quotation marks omitted) ("[P]roviding false information to the police does not make a private individual . . . a state actor and liable under § 1983"); Fisk v. Letterman, 401 F. Supp. 2d 362, 377 (S.D.N.Y. 2005) ("[A] private party who calls the police for assistance does not become a state actor unless the police were influenced in their choice of procedure or were under the control of the private party"). As such, Magistrate Judge Lovric correctly concluded that Plaintiff's claims against Defendant Hinkle cannot survive initial review.

Next, as Magistrate Judge Lovric explained in his Order and Report-Recommendation, there is an exception to Younger abstention. See Dkt. No. 10 at 14-15. Jurisdiction may be exercised despite the Younger factors being met if Plaintiff can show "bad faith, harassment, or any other unusual circumstance that would call for equitable relief." Younger v. Harris, 401 U.S. 37, 54 (1971). "To show bad faith, a plaintiff must show that 'the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive' and 'ha[s] no reasonable expectation of obtaining a favorable outcome.'" Lowell v. Vermont Dep't of Child. & Fams., 835 Fed. Appx. 637, 640 (2d Cir. 2020) (quoting Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 197-98 (2d Cir. 2002)). "A state proceeding that 'is legitimate in its purposes, but unconstitutional in its execution -- even when the violations of constitutional rights are egregious -- will not warrant the application of the bad faith exception.'" Id. (citation omitted).

Plaintiff contends that the police are racially biased towards him because he is Black and Defendant Hinkle is white, that the system does not believe men in domestic violence situations, and that the police did not read him his Miranda2 rights. See Dkt. No. 12 at 16-18, 22-24.

Plaintiff's contentions do not represent the circumstances under which the Court would exercise jurisdiction despite Younger abstention being warranted. Plaintiff makes conclusory, generalized statements about racial and gender discrimination in criminal and family court proceedings. See Dkt. No. 12 at 15-18, 22-24. He does not, however, provide any evidence that the police officers involved in the underlying incident treated him a certain way because of his gender or race, nor

Plaintiff submitted a letter to the Court on November 21, 2023. See Dkt. No. 13. In his letter, he contends that the Endicott Police Department and Defendant Hinkle "are attempting efforts to file additional false criminal charges against plaintiff related to several phone calls received from respondent Endicott Police Dept." Id. at 1. Plaintiff attaches a photo to his letter which reflects one missed call, one outgoing call, and one incoming call from "Endicott Police Department." Id. at 6. Plaintiff contends that Defendants' actions are in retaliation for Plaintiff's filings and appeals in state court. See id. at 2. He also states that "these disturbing and unlawful practices give rise to respondent Endicott Police Dept. engaging in hidden coercive police and prosecutorial misconduct." Id. Plaintiff's letter does not alter this Court's conclusion that Magistrate Judge Lovric correctly determined that the Court should abstain from interfering in this case as there are ongoing state proceedings. Rather, Plaintiff's letter confirms this conclusion as he indicates that he is appealing and filing actions in state courts. See id.3

In light of Plaintiff's pro se status, the Court will afford Plaintiff an opportunity to amend his complaint. If Plaintiff decides to amend his complaint, he must clearly set forth the facts that give rise to the claim, including, when possible, the dates, times, and places of the alleged underlying acts, as well as each individual who committed each alleged wrongful act. The revised pleading should allege facts demonstrating the personal involvement of any named Defendant. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Insofar as Plaintiff seeks to submit audio or video recordings to the Court, see Dkt. No. 14, he may do so with an amended pleading. However, the Court notes that Plaintiff's letter states that the recordings show Defendant Hinkle being the aggressor and demonstrate the Endicott Police Department's bias.

See id. at 2-3. Neither contention resolves the deficiencies in Plaintiff's complaint: (1) that Defendant Hinkle is a private party, not a state actor, and she cannot be sued under § 1983; and (2) that Plaintiff's state criminal proceedings are ongoing, and the Court should abstain from interfering under Younger. Finally, Plaintiff is informed that any amended complaint will replace the existing complaint and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Jeanty v. Sciortino, No. 6:22-CV-319, 2023 WL 2931863, *14 (N.D.N.Y. Apr. 13, 2023).4 B. Plaintiff's Request for an Order to Show Cause As to Magistrate Judge Lovric's recommendation denying Plaintiff's request for an order to show cause for a temporary restraining order or preliminary injunction, the Court finds no clear error. See Dkt. No. 10 at 17-18. For the Court to issue a preliminary injunction, Plaintiff must demonstrate "'irreparable harm' and . . . 'either (a) a likelihood of success on the merits, or (b)

Plaintiff seeks an order declaring the Endicott Police Department's actions unconstitutional, that he is the rightful owner of specific property, and that the state charges against him must be dropped. See Dkt. No. 4-1. As Magistrate Judge Lovric correctly concluded, Plaintiff has not made the requisite showing to warrant an order to show cause related to a temporary restraining order or preliminary injunction. See Dkt. No. 10 at 17-18; see also Asirus Ma'At EL/CARL MARTIN (Void) v. Bronx Crim. Ct., No. 07-CV-2680, 2007 WL 1225628, *1 (S.D.N.Y. Apr. 19, 2007) ("The plaintiff's allegations fail to establish any of the necessary requirements for preliminary injunctive relief. Specifically, the plaintiff fails to allege any irreparable injury apart from his anxieties relating to the pending criminal prosecution"). At this time, Plaintiff has opportunities to challenge his criminal prosecution in state court and he has not shown that he will be irreparably harmed absent this Court's intervention.

Accordingly, the Court hereby ORDERS that Magistrate Judge Lovric's Order and Report-Recommendation (Dkt. No. 10) is ADOPTED in its entirety for the reasons set forth herein; and the Court further ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED without prejudice, with leave to file an amended complaint within thirty (30) days of the date of this Order; and the Court further ORDERS that Plaintiff's letter request (Dkt. No. 14) is GRANTED; and the Court further ORDERS that Plaintiff's motion to dismiss Defendant Linda Jackson (Dkt. No. 17) is DENIED as moot; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of this Order, the Clerk of the Court shall enter judgment in Defendants’ favor and close this case, without further order of this Court; and the Court further ORDERS that Plaintiff's motion for an order to show cause for a temporary restraining order and preliminary injunction (Dkt. No. 4) is DENIED; and the Court further ORDERS that the Clerk of the Court serve a copy of this Order upon the parties in accordance with Local Rules.

IT ISSO ORDERED. .

Dated: January 2, 2024 J) , te DP y yf ‘ Albany, New York me = 57 <L ae fs U.S. District Judge