Nachmenson v. NYPD 77th Precinct
1:17-cv-03637
E.D.N.YOct 11, 2017Background
- Plaintiff Nachman Nachmenson, proceeding pro se and in forma pauperis, sued only the NYPD 77th Precinct alleging police misconduct and failure to investigate a May 28, 2017 burglary.
- He alleges prior wrongful arrest and beating by 77th Precinct officers and fears retaliation for a related state-court complaint.
- Nachmenson claims the break-in was committed by a member of a neighborhood patrol (Gilad Bazel) and that the 77th Precinct refused to respond to numerous calls or investigate the theft.
- He also alleges that Sergeant Sands and others are cooperating with Bazel and unlawfully charging guests of his building, plus harassment by officers.
- Plaintiff sought $770,000,000 in damages and injunctive relief; the complaint was dismissed by the district court for failure to state a claim and because the precinct is not a suable entity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 77th Precinct is a proper defendant | Nachmenson sued the 77th Precinct for failing to investigate and for misconduct | The 77th Precinct (NYPD subdivision) is not a separate legal entity and cannot be sued | Dismissed: precinct is non-suable; claim fails as pleaded |
| Whether failure to investigate gives rise to § 1983 or related claim | Failure to respond to calls and investigate the burglary violated his rights | Police have discretion and no affirmative duty to provide individual protection or investigate every complaint | Dismissed: no actionable duty to individual plaintiff; claim fails |
| Whether alleged private actor misconduct (Bazel) supports relief | Bazel and cooperating officers are improperly collecting rent and acting unlawfully | Plaintiff failed to allege any enforceable duty or legal right violated by Bazel or Sands | Dismissed: insufficient factual basis; amendment would be futile |
| Whether pro se status warrants liberal construction permitting amendment | Pro se pleadings should be read broadly to raise strongest arguments | Even liberally construed, claims fail as to entity and substantive law; amendment futile | Dismissed with prejudice as futile; appeal not in good faith |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state a plausible claim)
- Bell Atlantic v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (no enforceable duty to individual to provide police protection)
- DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (government has no general duty to provide public services to individuals)
- Jenkins v. City of New York, 478 F.3d 76 (NYPD is an agency of the City and not a suable entity)
- Sealed Plaintiff v. Sealed Defendant, 537 F.3d 183 (pro se pleadings entitled to liberal construction)
- Coppedge v. United States, 369 U.S. 438 (standard for good-faith certificate on appeal)