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finding plaintiff's Title II claim fails “because Title II, by its own terms, does not protect against gender discrimination”
Summary of this case from Ruiz v. HJ Family Corp.Opinion
23-CV-0101 (LTS)
02-06-2023
CARLOS A. ANTONETTI, ON BEHALF OF SON C.J.A, Plaintiffs, v. DAVE & BUSTERS 42ND STREET TIMES SQUARE; JOHN DOES & JANE DOE; DAVE & BUSTERS CORPORATE OFFICE; DAVE & BUSTERS INC. HQ, Defendants.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Carlos A. Antonetti, who is appearing pro se, purports to bring this action on behalf of himself and his minor son, C.J.A.He invokes the court's federal question jurisdiction and asserts claims that he was discriminated against based on his gender in violation of the federal constitution, 42 U.S.C. § 1985, and 42 U.S.C. §§ 2000a, 2000a-1. Named as defendants in the amended complaint are Dave & Busters Times Square, Dave & Busters Corporate Office, Dave & Busters HQ, and John and Jane Does. By order dated January 27, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees.
Plaintiff originally filed this action in the United States District Court for the Eastern District of New York. See Antonetti v. Dave & Busters, No. 22-CV-6892 (LDH) (JRC) (E.D.N.Y. Dec. 27, 2022). By order dated December 27, 2022, Judge LaShann DeArcy Hall of the Eastern District transferred this action to this court. (ECF 6.) On December 2, 2022, prior to the case being transferred, Plaintiff filed a motion to file an amended complaint, to which he attached a copy of the proposed amended complaint. (ECF 5.) Under Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiff is permitted to file an amended complaint as a matter of course. Because Plaintiff did not need permission to file an amended complaint, the Court denies the motion as moot and, for the purposes of this order, considers the amended complaint (ECF 51) as the operative pleading.
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 of the claims raised. 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.
Rule 8 requires a complaint to 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
Plaintiff Carlos A. Antonetti brings this action on behalf of his minor son. He invokes the Court's federal question jurisdiction, and purports to assert constitutional claims under 42 U.S.C. § 1983, as well as claims under 42 U.S.C. § 1985, 28 U.S.C. §§ 1331, 1343, and 42 U.S.C. §§ 2000a, 2000a-1. Named as Defendants are Dave & Busters 42nd Street Times Square, Dave & Busters Corporate Office, Dave & Busters Inc. HQ, and John and Jane Does.
The following allegations are taken from the amended complaint. On October 22, 2022, Plaintiff and his five-year-old son went to Dave & Busters located at 234 W. 42nd Street in Manhattan. After a short while, Plaintiff and his son were “approached and surrounded by a big security guard,” another security guard, and an Assistant General Manager named Robert. (ECF 5-1, at 1.) The security guard asked Plaintiff and his son to leave because another employee complained that Plaintiff had made “inappropriate and lewd remarks.” (Id. at 2.)
Plaintiff maintains that he and his son sat at the bar and ordered food, but that they did not make any inappropriate statements. Instead, Plaintiff attributes Defendants'' actions to discrimination on the basis of his gender expression because he is a “heterosexual single man” who was “seen doing the roles of both the mother and the father.” (Id. at 4.) Plaintiff maintains that his treatment is “a form of gender expression discrimination because of the way that I present myself with my child [which] not all people will like or accept because of there [sic] own personal feelings or hatred towards someone for no apparent reason even not knowing them.” (Id.) Plaintiff felt “disrespected violated intimidated threatened and discriminated against” and his child was “scared crying and dramatized through out the whole situation.” (Id.)
Plaintiff called the restaurant on the following day, and spoke to the same assistant general manager, who told Plaintiff that he would speak to the general manager in the coming days and call Plaintiff back. When the assistant manager did not call back, Plaintiff called the Corporate Office in Texas, which told Plaintiff that there was nothing they could do. Plaintiff made additional fruitless attempts to obtain information about any investigation into the incident. (See id. at 2-3.) He received the “same run around story” that they were investigating the incident and that Plaintiff will be contacted when the investigation is complete. (Id. at 3.) Plaintiff also filed complaints with the Better Business Bureau, the New York State Attorney General's Office of Civil Rights, the United States Department of Health and Human Services Office for Civil Rights, and the New York City Commission on Civil Rights. (Id.)
Plaintiff seeks money damages in the amount of $330,000 each for both his son and himself. (Id. at 5.)
DISCUSSION
A. Claims on behalf of Plaintiff's minor child
A nonlawyer parent ordinarily cannot represent a child's interests pro se. See Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (holding that it is “a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child”). Minors “are entitled to trained legal assistance so their rights may be fully protected” and nonlawyer parents are not trained to represent competently the interests of their children. Cheung, 906 F.2d at 61. Moreover, “a district court has a duty to raise this issue sua sponte.” Thomas v. Astrue, 674 F.Supp.2d 507, 511 (S.D.N.Y. 2009).
“In determining whether a non-attorney individual is attempting to bring an action on behalf of another, the ‘threshold question' is ‘whether a given matter is plaintiff's own case or one that belongs to another.'” Machadio v. Apfel, 276 F.3d 103, 107 (2d Cir. 2002) (quoting Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)). Here, Plaintiff purports to assert claims on behalf of his child. Plaintiff, however, cannot bring claims on behalf of the child without counsel. The Court therefore dismisses without prejudice any claims Plaintiff is asserting on behalf of his child.
B. Claims on Plaintiff's behalf
In light of Plaintiff's pro se status, the Court construes the complaint as also attempting to assert claims on his own behalf.
1. Section 1983
Plaintiff purports to assert claims under 42 U.S.C. § 1983 for violations of his federal constitutional rights. A claim for relief under Section 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing 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.”). As Defendants Dave & Busters and its various offices are private parties who are not alleged to work for any state or other government body, Plaintiff has not stated a claim against Defendants under Section 1983.
2. Section 1985
Plaintiff's complaint appears to suggest that he is attempting to assert claims of conspiracy under 42 U.S.C. § 1985(3). To state such a claim, a plaintiff must show the existence of: (1) a conspiracy; (2) for the purpose of depriving the plaintiff of the equal protection of the laws, or the equal privileges or immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of his right or privilege as a citizen of the United States. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). “[T]he [§ 1985(3)] conspiracy must also be motivated by some racial or perhaps otherwise class- based, invidious discriminatory animus behind the conspirators' action.” Id. (internal quotation marks and citation omitted). Vague and unsupported assertions of a claim of conspiracy will not suffice. See, e.g., Wang v. Miller, 356 Fed.Appx. 516, 517 (2d Cir. 2009) (summary order); Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).
Here, Plaintiff's allegations fail to suggest a claim under Section 1985. Plaintiff alleges that he was asked to leave Dave & Busters after being accused of making inappropriate remarks. Plaintiff maintains that he did nothing inappropriate, but was instead excluded because he was a “heterosexual single man” who was “seen doing the roles of both the mother and the father.” (ECF 5-1, at 4.) Plaintiff's alleges no specific facts suggesting that Defendants took action against him because of his gender. He speculates that “not all people will like or accept” his relationship with his son “because of there [sic] own personal feelings or hatred towards someone for no apparent reason even not knowing them.” (Id.) Moreover, Plaintiff's allegations do not suggest a conspiracy among the defendants. He alleges that various defendants -consisting of the restaurant he was asked to leave and its corporate offices - have told him that the incident is being investigated and that they will contact him when the investigation is complete. Nothing in the facts alleged by Plaintiff suggests a conspiracy motivated by invidious discrimination to deprive him of his federally protected rights. Plaintiff therefore fails to state a claim under Section 1985.
3. 42 U.S.C. §§ 2000a, 2000a-1
Plaintiff also invokes 42 U.S.C. §§ 2000a and 2000a-1. Section 2000a, which is the codification of Title II of the Civil Rights Act of 1964, states, “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.” Plaintiff's Title II claim fails because Title II, by its own terms, does not protect against gender discrimination. See Ewideh v. Kohl's Dep't Stores Carlisle Pennsylvania, No. 1:20-CV-2342, 2022 WL 2181235, at *7 (M.D. Pa. Feb. 4, 2022), report and recommendation adopted, No. 1:20-CV-02342, 2022 WL 1618530 (M.D. Pa. May 23, 2022); Guichardo v Langston Hughes Queens Library, 2015 WL 13227995, at *4 (E.D.N.Y. Nov. 20, 2015) (“Title II does not prohibit discrimination on the basis of sex.”); Seidenberg v. McSorleys' Old Ale House, Inc., 317 F.Supp. 593, 595 (S.D.N.Y. 1970) (discrimination on the basis of sex is not prohibited by Section 2000a); DeCrow v. Hotel Syracuse Corp., 288 F.Supp. 530, 532 (N.D.N.Y. July 30, 1968) (Title II does not protect against discrimination based on sex).
Section 2000a-1 prohibits “discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule or order of a State or any agency or political subdivision thereof.” Section 2000a-1 does not apply in this case because Plaintiff does not allege that any discrimination he faced was “required by any law, statute, ordinance, regulation, rule or order” of any state or municipality. Even if Section 2000a-1 did apply, Plaintiff's claim would fail because Section 2000a-1, like Section 2000a, does not include sex or gender among the characteristics it protects.
The Court therefore dismisses Plaintiff's claims under Sections 2000a and 2000a-1 for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Finally, Plaintiff invokes 28 U.S.C. §§ 1331 and 1343. These statutes merely provide the court with jurisdiction to hear certain claims - they do not confer substantive rights. Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the United States.” Section 1331 is a “jurisdictional statute [that] does not, in and of itself create a cause of action, but rather depends upon an action arising under a separate federal law before a district court's jurisdiction is proper.” 325 Bleecker, Inc. v. Local Union No. 747, 500 F.Supp.2d 110, 119 (N.D.N.Y. Mar. 31, 2007). Likewise, Section 1343 is a jurisdictional statute that does not create an independent cause of action. See Rivera v. City of New York, No. 1:20-CV-9968-GHW, 2022 WL 1523165, at *5 (S.D.N.Y. May 13, 2022) (Section 1343 “govern[s] procedure in the federal district courts and [does not] provide a separate claim for relief.”). The Court therefore dismisses Plaintiff's claims under Sections 1331 and 1343 for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
5. State law claims
A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal claims of which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of 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)).
C. Leave to amend is denied
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
The Court dismisses Plaintiff's complaint, filed IFP under 28 U.S.C. § 1915(a)(1), for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Any claims that Plaintiff is asserting on behalf of his child are dismissed without prejudice.
The Court declines to exercise supplement jurisdiction of any state law claims that Plaintiff may be asserting. See 28 U.S.C. § 1367(c)(3).
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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment in this action.
SO ORDERED.