         10-1977-pr
         Gardner v. McArdle

                                 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 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges,
 9                LEE H. ROSENTHAL,
10                         District Judge.*
11
12
13
14       PHILLIP JEROME GARDNER,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                10-1977-pr
19
20       SERGEANT MCARDLE, DETECTIVE KRISTOFFSEN,
21       DETECTIVE JIMENEZ, POLICE OFFICER ZOROVIC,
22       POLICE OFFICER COSTALES, all of the 77th
23       Precinct in Kings County,
24
25                                     Defendants-Appellees.**
26


                *
                The Honorable Lee H. Rosenthal, of the United States
         District Court for the Southern District of Texas, sitting by
         designation.
                **
                The Clerk of Court is respectfully instructed to amend
         the caption as set forth above.
1    FOR APPELLANT:      James W.B. Benkard, Andrew Ditchfield,
2                        Davis Polk & Wardwell LLP, New York,
3                        NY.***
4
5         Appeal from the United States District Court for the
6    Southern District of New York (Preska, C.J.).
7
8         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   VACATED and the case be REMANDED with directions to grant

11   leave to amend the complaint.

12        Plaintiff-Appellant Phillip Gardner appeals from a

13   judgment of the United States District Court for the

14   Southern District of New York (Preska, C.J.), dismissing his

15   pro se, in forma pauperis complaint brought pursuant to 42

16   U.S.C. § 1983.   The district court dismissed Gardner’s

17   complaint sua sponte on the basis that the complaint failed

18   to plead proper venue and failed to state a claim upon which

19   relief could be granted.    See 28 U.S.C. § 1915(e)(2)(B)(ii).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history of the case.

22         We review a district court’s sua sponte dismissal

23   pursuant to 28 U.S.C. § 1915(e) de novo.     Giano v. Goord,


          ***
             Corporation Counsel of New York has chosen not to appear
     as counsel for Defendants-Appellees in this appeal because the
     district court dismissed the case before any defendant was ever
     served.

                                     2
1    250 F.3d 146, 149-50 (2d Cir. 2001).   We agree with the

2    district court that Gardner’s complaint fails to state a

3    cognizable claim if it is construed to assert a failure to

4    provide Miranda warnings and false arrest.   Accordingly,

5    dismissal of the case would normally be proper.   However,

6    “[a] pro se complaint is to be read liberally.    Certainly

7    the court should not dismiss without granting leave to amend

8    at least once when a liberal reading of the complaint gives

9    any indication that a valid claim might be stated.”    Branum

10   v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citation

11   omitted).

12       Having conducted an independent review of the record,

13   we conclude that the district court should have afforded

14   Gardner an opportunity to amend his complaint to replead a

15   due process claim stemming from a Miranda violation.     “A

16   Miranda violation that amounts to actual coercion based on

17   outrageous government misconduct is a deprivation of a

18   constitutional right that can be the basis for a § 1983 suit

19   even when a confession is not used against the declarant in

20   any fashion.”   Deshawn E. v. Safir, 156 F.3d 340, 348 (2d

21   Cir. 1998) (citations omitted).

22


                                   3
1         In our view, a liberal reading of the complaint does

2    give an indication that Gardner might state a valid claim

3    that his due process rights were violated on the basis that

4    police coercion led to inculpatory statements.      Indeed,

5    Gardner’s complaint alleges that while he was in custody for

6    approximately fourteen hours, he was (1) placed in a line-

7    up; (2) forced to make written and videotaped statements;

8    and (3) told that he could not place a phone call until he

9    made a written statement—all without receiving Miranda

10   warnings.   Moreover, the mention of Gardner’s use of mental

11   health medication alludes to the possibility that he

12   suffered from mental health issues.     Finally, the affidavit1

13   attached to Gardner’s complaint specifically contends that

14   his Fourteenth Amendment right to due process was infringed

15   and discusses that Gardner was suffering from mental health

16   problems at the time of the incident.     Thus, Gardner’s

17   complaint, construed liberally, alleges more than a simple

18   Miranda violation and suggests that an amended complaint

19   would succeed in stating a claim.     See Gomez v. USAA Fed.

20   Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).

21

          1
            The affidavit was previously submitted in New York state
     court in support of Gardner’s motion to vacate his conviction
     pursuant to New York Criminal Procedure § 440.10.

                                     4
1        We recognize that an amended complaint brought by

2    Gardner faces several difficulties, to say the least.       Among

3    others, the circumstances of Gardner’s interrogation may

4    have not been “so coercive as to amount to a constitutional

5    violation.”    Deshawn E., 156 F.3d at 348.   In addition, the

6    doctrine of collateral estoppel may bar relitigation of

7    Gardner’s claim as it appears that the claim may have been

8    previously adjudicated in state court.     See Allen v.

9    McCurry, 449 U.S. 90, 103-04 (1980).     Despite these

10   challenges to Gardner’s Section 1983 action, we cannot “rule

11   out any possibility, however unlikely it might be, that an

12   amended complaint would succeed in stating a claim.”        Gomez,

13   171 F.3d at 796.   Accordingly, Gardner should be permitted

14   to amend his complaint.

15       Finally, the district court erred in dismissing

16   Gardner’s complaint sua sponte for improper venue because

17   there were no extraordinary circumstances to justify such a

18   dismissal.    See Concession Consultants, Inc. v. Mirisch, 355

19   F.2d 369, 371 (2d Cir. 1966); see also Stich v. Rehnquist,

20   982 F.2d 88, 88-89 (2d Cir. 1992).     Neither the complaint’s

21   insufficient venue allegations nor failure to state a

22   cognizable claim constitute the type of extraordinary

23   circumstances that warrant a sua sponte dismissal.        See

24   Gomez, 171 F.3d at 795-96.

                                    5
1       For the foregoing reasons, the judgment of the district

2   court is VACATED and the case is REMANDED with instructions

3   to permit Gardner to amend his complaint.

4
5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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