Opinion
No. 04-CV-0164E.
July 23, 2004
DECISION AND ORDER
INTRODUCTION
Plaintiff Muhammad Ali, a/k/a James William Epps, has filed this pro se action seeking relief, as he claims, under the Civil Rights Act of 1964, 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, and the federal criminal statute for theft and embezzlement, 18 U.S.C. § 641 (Docket No. 1), and has requested permission to proceed in forma pauperis (Docket No. 2). Plaintiff claims that the defendants Timmons, Kensington-Bailey Neighborhood Housing Services, Inc. and John Conrad of Kensington-Bailey Housing Services embezzled and stole money that he had given to Timmons, his landlord, for payment of his rent in January 2004. He also claims that defendants Erie County Department of Social Services Home Energy Assistance Program ("Erie County HEAP Program") and Fair Hearing Section Office of Administrative Hearing New York State Office of Temporary and Disability Assistance ("Fair Hearing Office") denied his 2004 application for emergency and regular Home and Energy Assistance Program "(HEAP") benefits. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted and the claims against defendant Timmons, Conrad and Kensingtion-Bailey Neighborhood Housing Services are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if, at any time, the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
A. Plaintiff's Allegations
Plaintiff alleges that in January 2004, while at a bar in Buffalo, he paid his landlord, an individual named Mr. Timmons, who is allegedly a City of Buffalo Police Officer, $300 in rent payments and that he was later advised by defendant John Conrad of defendant Kensingtion-Bailey Neighborhood Housing Services that he had to pay his rent directly to the agency and that his rent was considered unpaid. Plaintiff claims that Timmons, Conrad and Kensington-Bailey Neighborhood Housing Services conspired to steal his money, which he claims was his Veteran Affairs' benefits, in violation of 42 U.S.C. § 1983, RICO and the federal criminal statute covering theft and embezzlement of government funds.
Plaintiff also alleges that he was improperly denied emergency and regular HEAP benefits in 2004 by defendants Erie County Department of Social Services Home Energy Assistance Program and was denied access to a "Fair Hearing" by defendant Fair Hearing Section Office of Administrative Hearing New York State Office of Temporary and Disability Assistance. Based upon the Court's liberal construction of the complaint, it appears that plaintiff claims that he was denied HEAP benefits because of his race, religion and disability in violation of Title II of the ADA, 42 U.S.C. § 12132 (disability discrimination), the Civil Rights Act of 1964 (housing discrimination), 42 U.S.C. § 2000d and 42 U.S.C. § 1983.
The complaint alleges that the Fair Hearing was scheduled for "February 28, 1997," although his application for HEAP benefits was denied on February 7, 2004. For purposes of this Order, the Court presumes the date of the Fair Hearing was February 28, 2004.
Plaintiff does not specify what Title of the Civil Rights Act of 1964 he is relying on but the Court presumes its Title VI (Fair Housing), 42 U.S.C. § 2000d, which prohibits discrimination in housing.
1. Claims Against Defendants Timmons, Conrad and Kensington-Bailey Neighborhood Housing Services
Plaintiff claims under RICO, 42 U.S.C. § 1983 and the federal criminal theft and embezzlement statute, 18 U.S.C. § 641, against defendants Timmons, Conrad and Kensington-Bailey Neighborhood Housing Services must be dismissed with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), because they fail to state a claim upon which relief can be granted.
Initially, plaintiff's claims for criminal theft and embezzlement must be dismissed because there is no private right of action, either express or implied, under the criminal statute raised by plaintiff, 18 U.S.C. § 641. See Chilkat Indian Village v. Johnson, 643 F.Supp. 535, 536-37 (D. Alaska 1986) (nearly analogous statute criminalizing theft or embezzlement of monies or funds of "Indian Tribal Organization" found not to create private right of action) (citing Walter T. Martin, Inc. v. Peoples Gas Light and Coke Co., No. 85 C 9728, 1986 WL 2089, 1986 U.S. Dist. LEXIS 29770 (N.D. Ill. Jan. 31, 1986) (finding § 641 does not create private right of action); see generally Cort v. Ash, 422 U.S. 66 (1975) (in absence of express right of action in statute, courts must utilize four-part test for determining if statute creates an implied right of action). Moreover, it is well-established that a private individual has no constitutional right and standing to bring a criminal complaint against another individual. See Leeke v. Timmerman, 454 U.S. 83 (1981); Linda R.S. v. Richard D., 410 U.S. 614 (1973); Younger v. Harris, 401 U.S. 37, 42 (1971). b. RICO, 18 U.S.C. § 1961
Plaintiff alleges that Timmons, Conrad and Kensington-Bailey Neighborhood Housing Services conspired to steal his rent money in January 2004 and that in so doing they violated the RICO statute. To state a claim under "civil" RICO, plaintiff must first allege that the defendants have violated the substantive RICO statute, 18 U.S.C. § 1962. In so doing, plaintiff must allege the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more ["predicate"] acts (3) constituting a "pattern" (4) of "racketeering activity" (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an "enterprise" (7) the activities of which affect interstate or foreign commerce. Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983. Racketeering activity is defined in the statute as any act, including bribery and extortion, chargeable under State law and punishable by imprisonment for more than one year; any act indictable under numerous specific federal criminal provisions, including mail and wire fraud; and any offense involving bankruptcy, securities fraud or drug-related activities that is punishable under federal law. See 18 U.S.C.S. 1961.
Without going through each and every element of a RICO claim, it is clear that plaintiff's allegation of one instance of theft or conversion of his rent money does not state an actionable RICO claim and, therefore, this claim must be dismissed. Moreover, Rule 5.1(h) of the Local Rules of Civil Procedure for this Court require that any party asserting a claim under RICO must file and serve a "RICO Case Statement" with their complaint which sets forth in detail a number of allegations that, in effect, track the elements of a civil RICO claim. A party's failure to file such a statement may lead to the dismissal of a RICO claim. No such statement has been filed in this case. c. 42 U.S.C. § 1983
As noted, when liberally construing the complaint, as required, plaintiff may be alleging a claim under 42 U.S.C. § 1983 in relation to the alleged theft or conversion of his rent money. In order to state a valid claim under § 1983, the plaintiff must allege that the challenged conduct "(1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Plaintiff's claims herein fail on both accounts. First, while plaintiff alleges that Timmons was a City of Buffalo Police Officer, it is clear from a reading of the complaint that Timmons was acting as a "private" person when he allegedly accepted plaintiff's rent money as plaintiff's landlord, and not as a police officer. Accordingly, there is no allegation that Timmons was acting under color of state law. With respect to Conrad, an employee of Kensington-Bailey Neighborhood Housing Services, and the agency itself, there is no allegation that the agency was acting under color of state law with respect to the collection of plaintiff's rent.
Additionally, plaintiff has not and cannot allege that he was deprived of some constitutional right or privilege with respect to what amounts to, if proven, a state common law claim of conversion. See, e.g., Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.), cert. denied, 484 U.S. 896 (1987) (violation of state prison regulation does not rise to the level of a constitutional violation under § 1983).
Accordingly, plaintiff's claims against Timmons, Conrad and Kensingtion-Bailey Neighborhood Housing Services, Inc. are dismissed with prejudice in their entirety.
2. Claims Based on Denial of HEAP Benefits
Plaintiff alleges that he was denied HEAP benefits in February 2004 because of his race, religion and disability, and that he was denied a "Fair Hearing" to challenge the denial of his application for HEAP benefits. He claims that these actions were a violation of Title VI of the Civil Rights Act of 1964 ( see fn. 2, supra), Title II of the ADA, 42 U.S.C. § 12132, and 42 U.S.C. § 1983. At this point of the litigation — i.e., the initial screening stage under 28 U.S.C. § 1915(e)(2)(B) — the Court cannot say that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief[,]" Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and, therefore, the Court will allow the complaint to be served against the remaining defendants, Erie County Department of Social Services, Home Energy Assistance Program and Fair Hearing Section Office of New York State Office of Temporary and Disability Assistance, regarding plaintiff's claims that he was discriminated against by these defendants when he was denied HEAP benefits in February 2004. See McEachin v. McGuiniss, 357 F.3d 197, 201 (2d Cir. 2004) ("We have frequently reiterated that [s]ua sponte dismissal of pro se prisoner petitions which contain non-frivolous claims without requiring service upon respondents or granting leave to amend is disfavored by this Court.") (internal citation and quotations removed). These defendants, upon service of the summons and complaint, will then need to answer or otherwise move against the complaint.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), his request to proceed in forma pauperis is hereby granted. For the reasons discussed above, plaintiff's claims against defendants Timmons, Conrad and Kensingtion-Bailey Neighborhood Housing Services are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and the U.S. Marshal is directed to serve the summons and complaint on defendants Erie County Department of Social Services, Home Energy Assistance Program, and Fair Hearing Section Office of New York State Office of Temporary and Disability Assistance regarding the remaining claims related to the denial of plaintiff's HEAP benefits and the "exclusion" of plaintiff from his Fair Hearing in relation to said denial.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that plaintiff's claims against defendants Timmons, Conrad and Kensingtion-Bailey Neighborhood Housing Services are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to terminate defendants Timmons, Conrad and Kensingtion-Bailey Neighborhood Housing Services as parties to this action; and
FURTHER, that the Clerk of the Court is directed to file plaintiff's papers, and this cause the United States Marshal to serve copies of the Summons, Complaint, and this Order upon defendants Erie County Department of Social Services, Home Energy Assistance Program, and Fair Hearing Section Office of New York State Office of Temporary and Disability Assistance without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor.
SO ORDERED.