Opinion
9:20-CV-1043 (MAD/TWD)
10-18-2021
MARCUS ELDERKIN, Plaintiff, v. LAMAR ROMEO, Defendant.
MARCUS ELDERKIN Plaintiff, pro se GLEASON DUNN WALSH & O'SHEA MARK T. WALSH, Counsel for Defendant
APPEARANCES: OF COUNSEL:
MARCUS ELDERKIN Plaintiff, pro se
GLEASON DUNN WALSH & O'SHEA MARK T. WALSH, Counsel for Defendant
ORDER AND REPORT-RECOMMENDATION
Therese Wiley Dancks United States Magistrate Judge
I. BACKGROUND
Marcus Elderkin (“Plaintiff”) commenced this pro se action against the Addictions Care Center (“ACC”), ACC Director Lamar Romeo (“Defendant” or “Romeo”), and two unknown ACC staff members. (Dkt. No. 1.) After dismissing his original complaint, the Honorable Mae A. D'Agostino, United States District Judge, reviewed what the Court construed as his amended complaint (Dkt. No. 16) in accordance with 28 U.S.C. § 1915, and found Plaintiff's Fourteenth Amendment claims, pursuant to 42 U.S.C. § 1983 (“Section 1983”), against Romeo required a response. (Dkt. No. 19.)
In this action, Plaintiff contends he was a participant in a drug program at the ACC in July 2020. (Dkt. No. 40.) On July 24, 2020, Plaintiff asserts Defendant took him into his office to discuss claims that he was dealing drugs. Id. At that meeting, Plaintiff claims Defendant locked Plaintiff in his office and “attempted to force my pants down.” Id. According to Plaintiff, Defendant told Plaintiff that if he performed sexual acts he would get a “get out of jail free card[.]” Id. During the course of Defendant pulling his pants down, Plaintiff claims his penis got caught in his pant zipper which resulted in a cut on the top of his penis. Id. Plaintiff was ultimately dismissed from the ACC's program and was thereafter returned to jail. Id. As noted above, the Court construed these facts as possibly alleging a violation of Plaintiff's Fourteenth Amendment rights. (Dkt. No. 19.)
The Court will consider factual assertions contained in Plaintiff's opposition and in his original complaint to the extent they are consistent with the allegations contained in the amended complaint. See Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (noting that “although courts generally may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss, the mandate to read the papers of pro se litigants generously makes it appropriate to consider [the] plaintiff's additional materials, ” but only “to the extent that [they are] consistent with the allegations in the complaint” (italics and internal quotation marks omitted)); Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) (“[W]hen analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se litigant's opposition papers and other court filings.”).
Defendant has now moved to dismiss the amended complaint for failure to state a claim for which relief could be granted. (Dkt. No. 36.) In his motion, Defendant argues Plaintiff's claims must fail because the ACC is a private not-for-profit New York corporation and thus its employees are not susceptible to a Section 1983 claim. Id. at 5-10. In his response, Plaintiff did not address Defendant's legal arguments but instead reiterated his factual allegations that Defendant attempted to force him to engage in sexual acts. (Dkt. No. 40.) After carefully considering the motion, the Court recommends granting Defendant's motion to dismiss.
II. DISCUSSION
A. Standard of Review
A defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), 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). 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.
Where a party is proceeding pro se, the court is obliged to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “[t]he problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id.
B. State action
Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights . . . secured by the Constitution and laws shall be liable to the party injured.” 42 U.S.C. § 1983. Thus, to state a claim under Section 1983, a plaintiff must allege (1) a person acting under the color of state law, or a “state actor, ” (2) violated a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48-49 (1988); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”).
As noted above, Defendant asserts Plaintiff's claims cannot survive because the ACC is a private not-for-profit corporation and thus its employees are not subject to suit under Section 1983. As Defendant correctly points out, Section 1983 does not apply to “merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 560 U.S. 40, 49-50 (1999) (citations omitted). Here, the Court finds ACC is a private treatment facility, not a state actor. To that end, Defendant provided a copy of ACC's current Certificate of Good Standing from the New York Department of State to demonstrate it is a private New York not-for-profit corporation. (Dkt. No. 36-3.) The Court is entitled to take judicial notice of ACC's status as a not-for-profit business incorporated in New York for purposes of deciding this motion. See Maller v. Rite Aid Corp., No. 1:14-CV-0270, 2016 WL 1275628, at *3 (N.D.N.Y. Mar. 31, 2016) (“the Court may take judicial notice of Rite Aid New York's status as a business incorporated in New York based upon documents filed with the New York State Department of State.”) (citations omitted).
Nevertheless, there are certain circumstances where a private person or entity can be said to be a state actor. Specifically, a private entity's activity can be attributed to the government in three situations: (1) the entity acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) the entity willfully participates in joint activity with the state or its functions are entwined with state policies (the “joint action” or “close nexus” test); or (3) the state has delegated a public function to the entity (the “public function” test). Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012). The fundamental question under each test is whether the private entity's challenged actions are “fairly attributable” to the government. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
After reviewing the entire record and all the documents related to this action, the Court can only find one instance where Plaintiff offhandedly asserts putative state involvement. To that end, in his original complaint, he asserts that the “drug court” “sent” him to the ACC in lieu of prison. (Dkt. No. 1 at 5.) However, even if Plaintiff was required to participate in an inpatient treatment program as an alternative to incarceration, he has not plausibly alleged that ACC or Defendant are state actors who would be subject to liability under Section 1983 under any of the tests outlined above. See, e.g., Liverpool v. City of New York, No. 1:19-CV-5527 (CM), 2019 WL 3745734, at *2 (S.D.N.Y. Aug. 7, 2019) (finding an inpatient treatment facility was not a state actor); Vaughn v. Phoenix House Programs of New York, No. ECF 1:14-CV-3918 (RA), 2015 WL 5671902, at *5 (S.D.N.Y. Sept. 25, 2015) (“That Plaintiff opted to participate in the program at Phoenix House in lieu of completing a prison sentence does not does not transform the treatment facility and its employees into state actors, nor does it render their actions in implementing the internal requirements of the treatment program-which were not created or directed by the court-into state action.”); Mele v. Hill Health Ctr., 609 F.Supp.2d 248, 258-59 (D. Conn. 2009) (finding no state action by defendants who administered a drug intervention program even though the state permitted criminal defendants to complete such program in lieu of prosecution or serving a sentence).
Here, because Plaintiff has failed to allege any facts that would tend to indicate Defendant acted under color of state law, the Court must recommend dismissing his Section 1983 claims. However, in light of his pro se status, the Court further recommends providing Plaintiff one final opportunity to amend his complaint to provide more detail as to ACC's relationship with his court sentence. Notably, there are at least some instances where a putatively private drug treatment facility has been found to be acting under color of state law. See, e.g., Johnson v. White, No. 06CIV2540, 2010 WL 3958842, at *4 (S.D.N.Y. Sept. 9, 2010).
In that case, the Court first found the defendant had waived the argument regarding whether it was acting under color of state law, but then considered the issue in the alternative and found the treatment center was “fulfilling the role” of the New York State Department of Corrections. See Johnson, 2010 WL 3958842, at *4 n.5. The Court reasoned that, “[b]ecause Plaintiff was required to undergo inpatient treatment at the ARC as an outgrowth of his sentence, and because the ARC accepted him on those terms, the ARC ‘had been delegated a public function by the state' in its relationship to Plaintiff.” Id. (citing Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)).
III. CONCLUSION
After carefully considering the record, the Court recommends finding that, as currently pled, Plaintiff's claims against Defendant pursuant to Section 1983 fail as a matter of law. Accordingly, the Court recommends granting Defendant's motion to dismiss this action with leave to replead.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant's motion to dismiss the amended complaint (Dkt. No. 36), be GRANTED; and it is further
RECOMMENDED that the Court DISMISS Plaintiff's amended complaint (Dkt. No. 16) with LEAVE TO REPLEAD; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW . 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)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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).