Opinion
5:24-CV-0368 (MAD/ML)
06-14-2024
BISHME SMITH, Plaintiff, v. TERESA JOHNSON; MICHELLE FOLINO; RENEE HALL; STEPHANIE ALBERT; HOLLEY DAVIS; and JULIE RICHARDSON, Defendants.
BISHME SMITH Plaintiff, Pro Se
BISHME SMITH Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a pro se complaint together with an application to proceed in forma pauperis (“IFP”) in the above captioned action filed by Bishme Smith (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2.) For the reasons discussed below, I (1) grant Plaintiff's IFP application (Dkt. No. 2), and (2) recommend that Plaintiff's Complaint (Dkt. No. 1) be dismissed with leave to replead.
I. BACKGROUND
Plaintiff commenced this action on March 17, 2024, by the filing of a verified Complaint against defendants Teresa Johnson, Michelle Folino, Renee Hall, Stephanie Albert, Holley Davis, and Julie Richardson (collectively “Defendants”). (Dkt. No. 1.) The allegations set forth in the Complaint are substantially similar to allegations set forth by Plaintiff in another action pending in this district, Smith v. Davis, 5:22-CV-1202 (MAD/ML) (“Smith I”). (Compare Dkt. No. 1, with Smith I, Dkt. Nos. 1, 42.)
In sum, the Complaint alleges that Plaintiff and his family began renting an apartment in Black River Apartments housing complex in November 2021. (Dkt. No. 1 at ¶ 11.) The Complaint alleges that Defendant Johnson was the manager of the property and beginning on December 1, 2021, Plaintiff experienced issues with the property “rang[ing] from not having the correct mailbox key . . . to rent calculations being incorrect and . . . heat not working for a few days at a time.” (Dkt. No. 1 at ¶ 12.) The Complaint alleges that Plaintiff attempted to rectify the issues by contacting Defendants, but the issues were either not resolved or not resolved in a timely fashion. (Dkt. No. 1 at ¶¶ 19-20; see generally Dkt. No. 1.)
The Complaint alleges that a new tenant moved into the apartment above Plaintiff's at the end of February/beginning of March 2022, and conflicts between Plaintiff and the new tenant began. (Id. at ¶ 13.) The Complaint alleges that Plaintiff attempted to contact Defendants regarding the conflicts with the new tenant but did not receive a response. (Id. at ¶ 14.)
The Complaint alleges that on May 30, 2022, an incident occurred at Plaintiff's apartment between Plaintiff and the new tenant that resulted in Plaintiff calling the police and Plaintiff being charged with the criminal violation of harassment. (Id. at ¶ 15.)
The Complaint alleges that Plaintiff requested to move to another unit because the close geographic proximity to the new tenant was causing a decline in his mental health but that Defendants did not provide that accommodation. (Dkt. No. 1 at ¶¶ 17-18.)
The Complaint alleges that on July 27 (of an unspecified year), Plaintiff filed a formal complaint for discrimination with FHEO, HUD on the basis of race and disability. (Dkt. No. 1 at ¶ 21.)
The Complaint alleges that on August 22, 2022, the criminal violation of harassment was dismissed against Plaintiff. (Dkt. No. 1 at ¶ 23.) Plaintiff alleges that he shared news of the dismissal and documents reflecting the same with Defendants. (Id.)
The Complaint alleges that on September 10, 2022, Plaintiff received a letter from FHEO HUD confirming receipt of his complaint and confirming that the complaint had been forwarded to Defendants. (Dkt. No. 1 at ¶ 24.) The Complaint alleges that on September 14, 2022, Plaintiff received a “Notice to Vacate” stating that Plaintiff and his family must vacate their apartment by November 30, 2022. (Id. at ¶ 25.)
The Complaint alleges that Plaintiff and Defendants exchanged a series of correspondence regarding the basis for the eviction and that Plaintiff provided documents rebutting Defendants' proffered reason. (Dkt. No. 1 at ¶ 26.) Plaintiff alleges that his family was ultimately evicted and homeless for six months because Defendants provided false information to assistive agencies and organizations that Plaintiff was attempting to work with. (Id. at ¶¶ 27-35.)
Based on these factual allegations, the Complaint appears to allege the following five claims: (1) a claim pursuant to 42 U.S.C. § 1983 against Defendants; (2) a claim that Defendants improperly disseminated information protected by the Privacy Act; (3) a claim of defamation per se against Defendants; (4) a claim of defamation against Defendants; and (5) a claim of intentional infliction of emotional distress. (Dkt. No. 1 at 11-20.) As relief, Plaintiff seeks compensatory damages in the amount of $2,000,000, punitive damages, reasonable attorney fees, and other relief deemed just and equitable by the Court. (Dkt. No. 1 at 20-21.)
Plaintiff also seeks leave to proceed IFP.
II. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that it be dismissed for failure to state a claim upon which relief may be granted.
A. Claims Pursuant to 42 U.S.C. § 1983
To the extent that Plaintiff attempts to assert any constitutional claims, the Court construes those claims as made pursuant to 42 U.S.C. § 1983. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (internal quotation marks omitted). “A plaintiff pressing a claim of [a] violation of his constitutional rights under § 1983 is thus required to show state action.” Fabrikant, 691 F.3d at 206 (internal quotation marks omitted). “State action 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.” Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal quotation marks and brackets omitted).
There is no single test that is determinative of whether a private person or entity may be a state actor, but rather a host of factors. Baum. N. Dutchess Hosp., 764 F.Supp.2d 410, 428 (N.D.N.Y. 2011) (Treece, M.J.). A state actor may be found when: (1) “[the challenged activity] results from the State's exercise of coercive powers”; (2) “the State provides significant encouragement, either overt or covert . . . or when a private actor operates as a willful participant in joint activity with the State or its agents”; (3) “it is controlled by an agency of the State;” (4) “it has been delegated a public function by the State [known as the public function test]”; or (5) “it is entwined with governmental policies or when government is entwined in its management or control[.]” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (citations, quotation marks, and alterations omitted).
On occasion, these criteria have been stated differently but the impact remains the same:
The conduct of private actors can be attributed to the State for [§ 1983] purposes if (1) the State compelled the conduct, (2) there is a sufficiently close nexus between the State and the private conduct, or (3) the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State.Hogan v. A.O. Fox Mem'l Hosp., 346 Fed.Appx. 627, 629 (2d Cir. 2009) (citing Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)).
Here, Defendants ostensibly are private actors. However, in the interest of reading Plaintiff's Complaint “liberally and interpreted to raise the strongest arguments that [it can] suggest,” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013), the Court considers whether efendants' alleged activities establish “such a ‘close nexus between the State and the challenged action' that seemingly private behavior ‘may be treated as that of the State itself.'” Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)).
The only nexus between Defendants and the government is the allegation in the Complaint that
Defendants collectively and separately are employees of a Federally funded housing management company and in their official capacities due to receiving government funds by HUD, Defendants have the independent authority, and in executing that authority given to them by HUD, it appears that the government authorized it, although defendants collectively abused that authority and were acting under the color of law.(Dkt. No. 1 at ¶ 37.) Courts in this Circuit have held that receipt of federal funds and being subject to HUD regulations are insufficient to “even approach the close nexus test.” Hylton v. RY Mgmt., 05-CV-6710, 2006 WL 2088196, at *4 (S.D.N.Y. July 25, 2006); see Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Cir. 1982) (“[L]essors in Section 8 new construction housing programs act as private parties.”); Bowman v. Mitchell, 10-CV-0005, 2010 WL 1529473, at *2 (W.D. Ky. Apr. 14, 2010) (“The fact that Defendants work for and live in a property that is regulated by HUD is not enough to transform them into state actors.”).
As a result, I recommend that Plaintiff's claims pursuant to 42 U.S.C. § 1983 against Defendants be dismissed because they are not state actors.
B. Claims Pursuant to the Privacy Act
The Complaint asserts claims pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a, which allows individuals to request access to federal agency records about themselves. Devine v. United States, 202 F.3d 547, 550 (2d Cir. 2000). The Privacy Act also allows an individual to bring a civil suit against a federal agency that “fails to comply” with the statute such that the individual suffers an adverse effect. Devine, 202 F.3d at 550-51 (quoting 5 U.S.C. § 552a(g)(1)(D)). The statute does not permit such claims against a private entity, Pennyfeather v. Tessler, 431 F.3d 54, 56 (2d Cir. 2005) (citation omitted), or against individual federal employees, Mamarella v. Cnty. of Westchester, 898 F.Supp. 236, 238 (S.D.N.Y. 1995) (noting that “the plain language of [the Privacy Act] provides that only ‘agencies' are subject to the [statute],” not individuals).
Therefore, I recommend that Plaintiff's claims under 5 U.S.C. § 552a be dismissed against Defendants-who are private individuals-for failure to state a claim upon which relief may be granted. See Razzoli v. Richmand Univ. Med. Ctr., 23-CV-6697, 2023 WL 7017105, at *4 (E.D.N.Y. Oct. 25, 2023) (dismissing the plaintiff's Privacy Act claims where there was not an agency named as a defendant).
C. State Law Claims
Having found that all of Plaintiff's federal claims are subject to dismissal, the undersigned recommends that the Court decline to exercise jurisdiction over Plaintiff's remaining state law claims. See 28 U.S.C. § 1367(c)(3) (providing that a district court “may decline to exercise supplemental jurisdiction over [pendent state law claims] if . . . the district court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986) (holding that “federal courts, absent exceptional circumstances, should abstain from exercising pendent jurisdiction when federal claims in a case can be disposed of by summary judgment”) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180 (1974)).
Accordingly, I recommend that Plaintiff's state law claims against Defendants be dismissed.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Out of deference to Plaintiff's pro se status, I recommend that he be permitted to amend his Complaint.
If Plaintiff chooses to file an amended complaint, he should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1), because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).