Opinion
21 Civ. 11116 (ER)
03-17-2022
JOSHUA LINER, Plaintiff, v. KATHY HOCHUL, GOV.; STATE OF NEW YORK; RAMON ALVAREZ; OFFICER MICHAEL DAVID 40TH PRECINT; JOHN DOE 1# OFFICER 40TH PRECINT; JOHN DOE 2# OFFICER 40TH PRECINT, Defendants.
ORDER OF SERVICE
EDGARDO RAMOS, UNITED STATES DISTRICT JUDGE
Plaintiff Joshua Liner, who appears pro se, brings this action for damages and injunctive relief, alleging that the defendants have violated his federal constitutional rights. Plaintiff sues: (1) Governor Kathy Hochul; (2) the State of New York; (3) an alleged squatter who is living in Plaintiff's Bronx apartment, Ramon Alvarez; (4) Police Officer Michael David; (5) unidentified Police Sergeant or Officer “John Doe 1”; and (6) unidentified Policer Officer “John Doe 2.” The Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983.
Plaintiff has paid the fees to bring this action. For the reasons discussed below, the Court dismisses Plaintiff's claims against the State of New York and Defendant Alvarez. The Court also directs the Corporation Counsel of the City of New York to provide to Plaintiff and the Court the identities and badge numbers of Defendants “John Doe 1” and “John Doe 2.” The Court further directs the Clerk of Court to issues summonses for Governor Hochul and Defendant David.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the fees to bring a federal civil action, if the Court determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000), or that the Court lacks subject matter jurisdiction, see Fed.R.Civ.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court may also dismiss an action for failure to state a claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks omitted). But the Court has the inherent power to dismiss without granting leave to replead where amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011). 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).
DISCUSSION
A. The State of New York
The Court must dismiss Plaintiff's claims against the State of New York under the doctrine of Eleventh Amendment immunity. “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogate[d] the states' Eleventh Amendment immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (internal quotation marks and citation omitted, alteration in original). “[T]he immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. (internal quotation marks and citation omitted). This immunity shields States from claims for money damages, injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984).
Congress has not abrogated the States' immunity for claims under Section 1983, see Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), and the State of New York has not waived its immunity to suit in federal court, see Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). The Eleventh Amendment thus precludes Plaintiff's claims under Section 1983 against the State of New York. See Green, 474 U.S. at 72-74; Halderman, 465 U.S. at 101-02. Accordingly, the Court dismisses Plaintiff's claims against the State of New York under the doctrine of Eleventh Amendment immunity, for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); see Close v. New York, 125 F.3d 31, 38-39 (2d Cir. 1997) (“[U]nless New York waived its immunity, the district court lacked subject matter jurisdiction.”); Atl. Healthcare Benefits Trust, 2 F.3d 1, 4 (2d Cir. 1993) (“Although the parties do not address the Eleventh Amendment in their briefs, we raise it sua sponte because it affects our subject matter jurisdiction.”).
B. Defendant Alvarez
The Court must also dismiss Plaintiff's claims against Defendant Alvarez. To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988); Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (“State action [for the purpose of Section 1983 liability] requires both . . . the exercise of some right or privilege created by the State . . . and the involvement of a person who may fairly be said to be a state actor.”) (internal quotation marks and citation omitted, italics in original). Private entities are therefore not generally considered to be state actors. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties....”) (internal quotation marks and citation omitted).
Plaintiff asserts claims under Section 1983 against Defendant Alvarez, a private individual, arising from his alleged continued residence in Plaintiff's apartment despite owing Plaintiff rent arrears. Plaintiff has alleged no facts showing that Defendant Alvarez is a state actor. The Court therefore dismisses Plaintiff's claims under Section 1983 against Defendant Alvarez for failure to state a claim on which relief may be granted. The Court denies Plaintiff leave to replead these claims as it would be futile. See Hill, 657 F.3d at 123-24.
To the extent that Plaintiff asserts claims under Section 1983 against Defendant Alvarez arising from his summoning police or reporting Plaintiff to the police, such acts do not make Alvarez a state actor for the purpose of Section 1983 liability. See, e.g., Rodriguez v. Winski, 973 F.Supp.2d 411, 422 (S.D.N.Y. 2013) (“[S]ummoning police or requesting that police take action . . . simply does not suffice to constitute joint action or to convert the private party into a state actor. Indeed, even if a private party provides false information to police . . . such provision alone does not constitute joint action actionable under § 1983.”) (citations omitted), appeal dismissed, No. 13-4093 (2d Cir. Nov. 13, 2013) (dismissal effective Nov. 27, 2013).
C. “John Doe” Defendants
Under Valentin v. Dinkins, a pro se litigant is entitled to assistance from the district court in identifying an unidentified defendant. 121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff supplies sufficient information to permit the New York City Police Department (“NYPD”) to identify the unidentified “John Doe” defendants. They include any NYPD sergeant or police officer assigned to the NYPD's 40th Precinct who, because of accusations made by Defendant Alvarez, arrested Plaintiff, including on November 23, 2021. It is therefore ordered that the Corporation Counsel of the City of New York, who is the attorney for and agent of the NYPD, must ascertain the identity and badge number of each of the unidentified “John Doe” defendants whom Plaintiff seeks to sue here, and the address where each of those defendants may be served. The Corporation Counsel must provide this information to Plaintiff and the Court within 60 days of the date of this order.
Within 30 days of receiving this information, Plaintiff must file an amended complaint naming the newly identified individuals as defendants. The amended complaint will replace, not supplement, the original complaint. An amended complaint form that Plaintiff should complete is attached to this order. Once Plaintiff has filed an amended complaint, the Court will screen the amended complaint and, if necessary, issue an order directing the Clerk of Court to issue summonses for the newly identified defendants.
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff, together with an information package.
The Court dismisses Plaintiff's claims against the State of New York and Defendant Alvarez.
The Court also directs the Clerk of Court to mail a copy of this order and a copy of the complaint to the Corporation Counsel of the City of New York, at 100 Church Street, New York, New York 10007. An amended complaint form is attached to this order.
The Court further directs the Clerk of Court to issue summonses for Governor Kathy Hochul and Defendant Michael David. The Court directs Plaintiff to serve summonses and the complaint on Governor Hochul and Defendant David within 90 days of the issuance of the summonses. If within those 90 days, Plaintiff has not served Governor Hochul and Defendant David, or requested an extension of time to do so, the Court may dismiss Plaintiff's claims against those defendants under Rules 4 and 41 of the Federal Rules of Civil Procedure for failure to prosecute.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.