         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

 4   58, 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
