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10-789-cv Barreto v. Doe UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 12th day of January, two thousand twelve. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 PETER W. HALL, 9 Circuit Judges, 10 STEFAN R. UNDERHILL,*- 11 District Judge. 12 ________________________________________ 13 14 Juarez F. Barreto, 15 Plaintiff-Appellant, 16 17 -v.- 10-789-cv 18 19 The County of Suffolk, 20 Defendant-Appellee, 21 22 John Doe, Jane Doe, Melissa L. Eggers, 23 individually and in official capacity 24 as Suffolk County Assistant District 25 Attorney, The County of Suffolk Office 26 of the District Attorney, 27 Defendants. * Judge Stefan R. Underhill, of the United States District Court for the District of Connecticut, sitting by designation. 1 ________________________________________ 2 3 FOR APPELLANT: Juarez F. Barreto, pro se, Ogdensburg, 4 New York. 5 6 FOR APPELLEE: Brian C. Mitchell, Assistant County 7 Attorney, Suffolk County Department 8 of Law, Hauppauge, New York. 9 10 Appeal from a judgment of the United States District 11 Court for the Eastern District of New York (Seybert, J.). 12 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, 13 AND DECREED that the judgment of the district court is 14 AFFIRMED. We VACATE a portion of the district court’s 15 order. 16 Appellant Juarez F. Barreto, pro se, appeals from the 17 district court’s January 20, 2010 order sua sponte 18 dismissing his amended complaint, in which he brought claims 19 pursuant to
42 U.S.C. § 1983. We assume the parties’ 20 familiarity with the underlying facts, the procedural 21 history of the case, and the issues on appeal. 22 We review de novo a district court’s sua sponte 23 dismissal of a complaint pursuant to
28 U.S.C. § 1915(e)(2). 24 See Giano v. Goord,
250 F.3d 146, 149-50 (2d Cir. 2001). 25 Although all allegations contained in the complaint are 26 assumed to be true, this tenet is “inapplicable to legal 27 conclusions.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 2 1 (2009). The complaint must plead “enough facts to state a 2 claim to relief that is plausible on its face.” Bell 3 Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A 4 claim will have “facial plausibility when the plaintiff 5 pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the 7 misconduct alleged.” Iqbal,
129 S. Ct. at 1949. In 8 addition, district courts must liberally construe pro se 9 complaints. See Triestman v. Federal Bureau of Prisons, 470
10 F.3d 471, 474-75 (2d Cir. 2006) (per curiam). 11 We find no error in the district court’s holding that 12 Appellant failed to raise a plausible claim of municipal 13 liability against the County of Suffolk because Appellant 14 failed to demonstrate either a viable constitutional 15 violation or that such violation occurred pursuant to a 16 county policy or custom. See Monell v. Dep’t of Soc. 17 Servs.,
436 U.S. 658(1978). To the extent that Appellant’s 18 notice of appeal can be construed as also appealing from the 19 October 17, 2009 district court order dismissing the claims 20 in the original complaint against the other defendants, 21 Appellant has waived any argument that the district court 22 erred in dismissing those claims, including the claims 3 1 against the unnamed assistant district attorney who appeared 2 at a May 2009 hearing regarding Appellant’s motion for a 3 reduction in bail. See Tolbert v. Queens Coll.,
242 F.3d 458, 75 (2d Cir. 2001); Norton v. Sam’s Club,
145 F.3d 114, 5 117 (2d Cir. 1998). Even if we were to reach those claims, 6 we would find them without merit. The defendants were 7 entitled to prosecutorial immunity, see Imbler v. Pachtman, 8
424 U.S. 409, 430-31 (1976), or, in the case of the Suffolk 9 County District Attorney’s Office, was not an entity capable 10 of being sued, see Ying Jing Gan v. City of New York, 996
11 F.2d 522, 535-36 (2d Cir. 1993). 12 We do, however, vacate that portion of the district 13 court’s January 20, 2009 order which purports to impose a 14 “third strike” pursuant to
28 U.S.C. § 1915(g), to bar 15 Appellant from bringing a civil action or proceeding unless 16 he is under imminent danger of serious physical injury, and 17 to notify Appellant that his future attempts to commence 18 civil actions that do not comply with § 1915(g) will be 19 rejected without consideration. First, district courts 20 should not impose strikes in their dismissal orders. See 21 Deleon v. Doe,
361 F.3d 93, 95 (2d Cir. 2004) (per curiam). 22 Instead, they should set forth the reasons for their 4 1 dismissal to assist the court charged with making the 28
2 U.S.C. § 1915(g) determination–i.e., the court faced with a 3 defendant’s argument that the plaintiff cannot maintain an 4 action in forma pauperis because he has three strikes. See 5 Deleon,
361 F.3d at 95; Snider v. Melindez,
199 F.3d 108, 6 115 (2d Cir. 1999). Second, § 1915(g), by its terms, only 7 prevents a plaintiff who has accumulated three strikes from 8 proceeding in forma pauperis; it does not provide, as the 9 district court’s language might be read to suggest, for the 10 automatic dismissal of any future civil action the plaintiff 11 might bring. 12 We have considered Appellant’s remaining arguments and 13 find them to be without merit. For the foregoing reasons, 14 the judgment of the district court is hereby AFFIRMED, and a 15 portion of the district court’s order is VACATED. 16 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22 5
Document Info
Docket Number: 10-789-cv
Citation Numbers: 455 F. App'x 74
Judges: Wesley, Hall, Underhill
Filed Date: 1/12/2012
Precedential Status: Non-Precedential
Modified Date: 11/5/2024