Opinion
20-CV-8871 (LLS)
04-27-2021
YAYA JALLOW, Plaintiff, v. THE CITY OF NEW YORK; THE SALVATION ARMY OF GREATER NEW YORK; GRAND CENTRAL NEIGHBORHOOD SOCIAL SERVICES CORPORATION; URBAN PATHWAY, Defendants.
ORDER OF DISMISSAL :
Plaintiff, who is proceeding pro se and in forma pauperis (IFP), filed this complaint alleging that Defendants violated his rights. By order dated December 28, 2020, the Court directed Plaintiff to amend his complaint to address deficiencies in his original pleading. Plaintiff filed an amended complaint on February 24, 2021, and the Court has reviewed it. The action is dismissed for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
In his original pleading, Plaintiff set forth the following allegations about his experiences with the network of New York City agencies and nonprofit organizations that provide shelter and other services to the homeless population. In 2019, Plaintiff was "unjustly transferred to Kingsboro, an under-facilitated & dangerous 'disciplinary shelter'" in Brooklyn. According to Plaintiff, he was transferred because of his national origin, race, color, and ancestry, and in retaliation for complaining about the transfer and other events occurring in the shelter system. Defendants refused Plaintiff a bed, stole his property, harassed him, and discriminated against him. Plaintiff asserts claims under 42 U.S.C. 1983, and a number of federal criminal statutes (18 U.S.C. §§ 241, 249, 1028, 1505, 1038). The complaint contained an "exhibit list," but no exhibits were attached to the complaint. (Id. at 7-8.) On December 7, 2020, Plaintiff filed a 52-page "motion to file exhibit packet." (ECF 5.) The documents attached to that motion consist largely of photographs of shelter sign in sheets, email and text correspondence, and shelter signage. Plaintiff seeks money damages.
Plaintiff has filed seven pro se cases in this Circuit. See Jallow v. Airbnb, Inc., 20-CV-4089 (E.D.N.Y. Dec. 16, 2020) (dismissing complaint with leave to replead; order returned as undeliverable); Jallow v. The Local Mgmt., 20-CV-4088 (E.D.N.Y. filed Aug. 25, 2020) (same; second amended complaint pending); Jallow v. City of New York, ECF 1:20-CV-8629, 2 (S.D.N.Y. filed Oct. 15, 2020) (pending); Jallow v. City of New York, ECF 1:20-CV-8001, 6 (S.D.N.Y. Nov. 30, 2020) (dismissing complaint without prejudice); Jallow v. Dep't of Soc. Servs., ECF 1:20-CV-6511, 8 (S.D.N.Y. filed Aug. 14, 2020) (pending); Jallow v. City of New York, ECF 1:20-CV-6260, 2 (S.D.N.Y. filed Aug. 7, 2020) (pending). --------
The December 28, 2020 order to amend stated the following: the complaint failed to state a claim against the City of New York because there were no facts showing that a municipal policy, custom, or practice led to the alleged injuries; Plaintiff had not alleged facts showing that the private defendants are state actors for purposes of § 1983 liability; there were insufficient facts in the complaint to support an inference that Plaintiff had been the victim of discrimination or retaliation, and Plaintiff lacked standing to assert claims under criminal statutes. The Court directed Plaintiff to file an amended complaint to address these deficiencies.
Plaintiff filed an amended complaint that, with attachments, is 138 pages long. The attachments are similar to those included in the "exhibit packet," but also include timelines of Plaintiff's transfers to different shelters, copies of complaints Plaintiff filed with the shelters, the Civilian Complaint Review Board (CCRB), the New York State Office of the Inspector General, and the New York State Division of Human Rights. Plaintiff asserts that Defendants failed to provide him with:
the same level of service afforded to anyone else all under the deliberate ruse of the Plaintiff being a mentally unstable violent aggressive young black male in a deliberate campaign designed with the ultimate goal of ending the Plaintiff and his life, liberties, reputation, livelihood, and legal endeavors.(ECF 7 at 8.)
Plaintiff asserts that he has been
slanderously discriminated against on the basis of his race, color, sex, national origin, & familial status as part of a plot to silence The Plaintiff and when all else failed The Defendants and their personnel would attempt to kill or endanger The Plaintiff in a dimwitted scheme to rob The Plaintiff stigmatizing him and leaving him dead in the street or at the hands of the City of New York Police Department has happened to countless minorities in the City and State of New York time and time again, with several following the same temple, as BLM protest would infer.(Id. at 9.)
Plaintiff reiterates that he was transferred to a dangerous shelter, and denied shelter on a number of occasions, to prevent him from "bringing possible litigations" against "negligible parties." (Id. at 12-13.) Plaintiff further claims that he filed a complaint with the CCRB after he was the "victim" of an "entrapment," but the CCRB was corrupt, the City "claim[ed]" a lack of knowledge of the incident, and shelter staff "hindered" Plaintiff's complaints against the City and the New York City Police Department. (Id. at 13.) Plaintiff appears to allege that Defendants stole his 2018 New York State income tax return. (Id. at 16.) He asserts claims under 42 U.S.C. §§ 1981 and 1983, and claims arising under state law, including negligence, conversion, defamation, and intentional infliction of emotional distress.
DISCUSSION
Plaintiff largely reiterates the claims set forth in the original complaint, albeit with greater detail. But the amended complaint is inadequate for the same reasons stated in the December 28, 2020 order. There are insufficient facts supporting Plaintiff's assertion that he was subjected to discrimination. Moreover, he fails to show that a municipal policy, custom, or practice led to his injuries, or that the private defendants acted under color of state law.
Plaintiff asserts that Defendants retaliated against him for complaining about shelter conditions by denying him appropriate shelter and other assistance. To state a First Amendment retaliation claim, a private citizen must allege that (1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right. Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) ("Regardless of the factual context, [courts] have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.").
Assuming that Plaintiff is entitled to First Amendment protection for his advocacy on issues of personal concern to him, he nevertheless fails to plead facts suggesting that Defendants' actions were "motivated or substantially caused" by his exercise of his First Amendment rights. In other words, Plaintiff's complaint does not allege facts suggesting that there was a causal link between his lodging of complaints and his failure to obtain the type of shelter or other assistance he was seeking. Plaintiff also fails to plead facts showing that Defendants' actions effectively chilled the exercise of his First Amendment rights. In short, Plaintiff fails to state a claim that Defendants violated his rights under the First Amendment by retaliating against him for his complaints about the shelter system.
Plaintiff also asserts a claim under 42 U.S.C. § 1981. Under § 1981, all individuals "have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." § 1981(a). To state a claim under § 1981, a plaintiff must allege three elements: "(1) the plaintiff is a member of a racial minority; (2) defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute . . . ." Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). The statute extends to conduct by private parties. Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998). In order to make out a claim for individual liability under § 1981, "a plaintiff must demonstrate some affirmative link to causally connect the actor with the discriminatory action." Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004).
Plaintiff alleges that Defendants discriminated against him, but he does not plead any facts that could plausibly allege that any defendant took any action against him on the basis of a characteristic that is protected under § 1981.
Having dismissed the federal claims over which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction over any state-law claims Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("Subsection (c) of § 1367 'confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'") (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
District courts generally grant a pro se plaintiff leave to amend a complaint to cure its defects, but leave to amend may be denied if the plaintiff has already been given an opportunity to amend but has failed to cure the complaint's deficiencies. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's amended complaint cannot be cured with a further amendment, the Court declines to grant Plaintiff another opportunity to amend.
CONCLUSION
Plaintiff's action, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff has consented to electronic service. (ECF 3.) SO ORDERED. Dated: April 27, 2021
New York, New York
/s/_________
Louis L. Stanton
U.S.D.J.