Opinion
22-CV-6662 (LTS)
10-24-2022
BENJIMAN HOLMES, Plaintiff, v. THE CITY OF NEW YORK; NAICA; ANTHONY ACOSTA; DHS, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action alleging that his constitutional rights were violated when he was “jumped” at a facility operated by Defendant Neighborhood Association for Inter-Cultural Affairs (“NAICA”). He also names as Defendants the City of New York, the New York City Department of Homeless Services (“DHS”), and Anthony Acosta, who is employed at NAICA. As Plaintiff asserts that Defendants violated his constitutional rights and he names the City of New York, the Court construes the complaint as asserting claims under 42 U.S.C. § 1983. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 158 (2d Cir. 2017) (holding that district courts must construe a pro se plaintiff's complaint as asserting claims under laws of which factual allegations suggest a violation).
Plaintiff also refers to Acosta as “DHS Director,” but the address he provides is the same address he provides for NAICA. According to NAICA's website, it operates a transitional housing program at 3339 Park Avenue in the Bronx, the same address Plaintiff provides as Acosta's address. See NAICA, Transitional Housing Programs, http://naicany.org/transitional-housing (last visited on Sept. 27, 2022). NAICA describes itself as a not-for-profit organization. See id. naicany.org/about-us/.
By order dated August 9, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court: (1) dismisses Plaintiff's claims against DHS because it is a nonsuable entity under the New York City Charter; (2) dismisses the Section 1983 claims against NAICA and Acosta; and (3) grants Plaintiff leave to file an amended complaint against Acosta and the City of New York, within 60 days of the date of this order.
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 of the Federal Rules of Civil Procedure 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
The following facts are drawn from the complaint. On multiple occasions, at a Defendant NAICA “facility,” Plaintiff was “jumped.” (ECF 2, at 5.) Plaintiff concludes that NAICA employee,
Quotations are taken directly from the complaint. All grammar, punctuation and syntax are as in the original.
Anthony Acosta is behind it. Acosta has broken into my locker taking 65$ worth of food. He has held my medication from me knowing that I am a cardiac. I've had people attack me harming me. DHS has failed to put me in a protective location and have held me for 15 years from getting an apartment. My last incident I was jump my some one in this pace they call the police on my and I was victim. Had me lock up. I had to go to hospital to be treated for trauma. This happened on December 23 2021.(Id.)
Plaintiff contends that the December 23, 2021, arrest was “wrong ful . . . because I was hurt in the process.” (Id. at 6.) He also contends that he “was treated for trauma in the hospital . . . [and that because I am] a cardiac patient I can not be pushed to the ground and hit in the head.” (Id.) He claims he has suffered head trauma, which has been treated at the hospital, “due to people hitting me.” (Id.) He seeks money damages in the amount of $9,000,000, claiming that “this place has almost killed me.” (Id.)
DISCUSSION
A. Department of Homeless Services
Plaintiff's claims against DHS must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F.Supp.2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).
B. NAICA and Anthony Acosta
Plaintiff alleges that Defendant Anthony Acosta, an employee of Defendant NAICA, was involved personally in violating his rights by: (1) breaking into Plaintiff's locker; (2) taking $65 worth of Plaintiff's food from his locker; and (3) holding his medication, knowing that Plaintiff has a heart condition. He also alleges that Acosta “is behind” Plaintiff being “jump[ed]” at his NAICA residence. (ECF 2, at 5.) As set forth below, Plaintiff's federal claims against these two defendants cannot proceed because they are both private parties.
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. As such, private parties 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.”).
The activity of a private entity can be attributed to the state 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). See Fabricant 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 state. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
In analyzing whether a private entity acts under color of state law for purposes of Section 1983, the district court begins “by identifying the specific conduct of which the plaintiff complains,” rather than the general characteristics of the entity. Id. Providing housing is not a public function because it is not the exclusive province of the state. See, e.g., George v. Pathways to Housing, Inc., No. 10-CV-9505 (ER), 2012 WL 2512964, at *4 (S.D.N.Y June 29, 2012) (“It is well established that the provision of low-cost supportive housing is not a ‘public function' within the meaning of section 1983.”). The fact that an entity receives public funds does not turn private action into state action. See Rendell-Baker, 457 U.S. at 840.
1. NAICA
Defendant NAICA is a private entity that provides housing. This function, however, is not a public function, and NAICA's role in providing housing to Plaintiff cannot be attributed to the state. The Court therefore dismisses Plaintiff's Section 1983 claims against NAICA for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
2. Acosta
Plaintiff alleges that Acosta broke into his locker, took his food, and withheld his medication. Because Acosta is a private party who allegedly works for a private entity, Plaintiff fails to state a Section 1983 claim against this Defendant. The Court grants Plaintiff leave, however, to state more facts in an amended complaint regarding Acosta's alleged conduct. For example, Plaintiff alleges that Acosta withheld his medication, but he does not provide any other facts concerning this alleged withholding, including the reasons for withholding Plaintiff's medication. Without more facts, the Court is unable to determine whether Plaintiff states a claim that Acosta violated any federal law.
C. City of New York
Plaintiff also names the City of New York as a defendant, but it is unclear what claims he seeks to bring against this Defendant. Moreover, the allegations do not suggest that any policy, custom, or practice of the City of New York caused Plaintiff's injuries, as Plaintiff must show in pressing any claim against the City of New York.
When a plaintiff sues a municipality under Section 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be subjected' to such deprivation.”) (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011).
To state a Section 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
Plaintiff alleges that he was injured at a NAICA residence and then was wrongfully arrested. Because he names DHS as a defendant, the Court finds that Plaintiff seeks to bring a claim against the City of New York regarding his housing at a NAICA residence. Plaintiff does not, however, state any facts suggesting that a municipal policy caused any injury to him; the complaint suggests only that Acosta caused his injuries at the NAICA residence. He also does not state any facts suggesting that his arrest was unlawful, that any arresting officer violated his rights, and that such a violation indicates that a New York City policy, custom, or practice caused his injury. The Court therefore grants Plaintiff leave to amend his complaint to state facts in support of his claims against the City of New York.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment 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). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] 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) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claim against Acosta and the City of New York, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint to assert claims against Acosta and the City of New York. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-6662 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court dismisses the claims brought against DHS under the New York City Charter and the Section 1983 claims against NAICA.
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. 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.
(Exhibit Omitted).