Toribio Abreu v. Doe 1

Background

Ramel Argenis Toribio Abreu, who was detained at the Orange County Jail, filed this action without a lawyer. He alleged that Drug Enforcement Administration agents assaulted him during his November 29, 2021 arrest in Yonkers, New York. Because he alleged that federal employees violated his constitutional rights, the court treated the complaint as asserting claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allows certain constitutional claims against federal officials.

Chief Judge Laura Taylor Swain had previously granted Abreu permission to proceed without paying filing fees in advance. The court explained that it must screen such a complaint and dismiss claims that are frivolous, malicious, fail to state a legally sufficient claim, or seek money from an immune defendant.

John Doe Defendants

The complaint named three defendants as John Doe #1, John Doe #2, and John Doe #3. The court found that Abreu had provided enough information for the Drug Enforcement Administration to identify them. Relying on the rule that a court should help an unrepresented litigant identify an unnamed defendant, the court ordered the U.S. Attorney’s Office for the Southern District of New York to determine each Doe defendant’s identity, badge number, and address for service within 60 days of the order.

Within 30 days after receiving that information, Abreu must file an amended complaint naming the Doe defendants. The amended complaint will replace, rather than supplement, the original complaint. The court will screen the amended complaint after it is filed and may then direct the Clerk’s Office and U.S. Marshals Service to complete service-related steps.

John J. Kerwick

A claim under Bivens requires facts showing that each defendant was personally and directly involved in the alleged constitutional violation. The court found that Abreu alleged no facts connecting John J. Kerwick to the events at issue. Kerwick’s name appeared only in the caption and not in the complaint’s factual allegations.

The court therefore dismissed Abreu’s claims against Kerwick for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Because Abreu was proceeding without a lawyer, the court granted him leave to replead any claim against Kerwick by alleging facts showing Kerwick’s personal involvement. Abreu may include those allegations in the amended complaint naming the Doe defendants.

Disposition

The court ordered assistance in identifying John Doe #1, John Doe #2, and John Doe #3, and dismissed the claims against John J. Kerwick with leave to replead. It also certified that an appeal would not be taken in good faith and denied permission to appeal without prepayment of fees.