Opinion
21-CV-7118 (JPC) (JLC)
03-06-2023
CHRISTIAN PAUL ENZO KLEIN, Plaintiff, v. METROPOLITAN TRANSIT AUTHORITY, et al., Defendants.
Honorable John P. Cronan, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
Christian Paul Enzo Klein (“Klein”), proceeding pro se, has brought this Section 1983 action alleging that the Metropolitan Transit Authority (“MTA”), the MTA Police Department, Police Officer Brian Denicola, Lieutenant Matthew Sauer, Police Officer Danielle Hughes, Captain Jennifer Kelly, Kirk Thomas, and Gina Mital (“Mital”) violated his constitutional rights as a result of an incident on a Metro-North train in 2018. Klein also alleges a claim of slander against Mital. Pending before the Court is Mital's motion to dismiss the claims against her and Klein's cross-motion for leave to further amend his complaint. For the reasons set forth below, I recommend that Mital's motion be granted and Klein's cross-motion be denied.
I. BACKGROUND
A. Factual Background
Klein alleges as follows in his amended complaint: on August 22, 2018, he intended to board a Metro-North train traveling from Harlem to Port Chester, New York, but accidentally boarded a train bound for New Haven, Connecticut. Amended Complaint (“Am. Compl.”), Dkt. No. 24, at 5. On the train, Klein encountered conductor Kirk Thomas and explained to him that he had boarded the wrong train. Id. Thomas told Klein that he would have to pay an additional $20 for a ticket, which Klein said “couldn't be right.” Additional Facts, Dkt. No. 24-1 ¶ 3.Once the train reached Stamford, Connecticut, Thomas called the other individual defendants and together, they wrestled Klein to the ground, stomped on him, and arrested him. Id. ¶¶ 6-7. Klein was arrested and charged with theft of service, breach of the peace, and resisting arrest; the case against him was dismissed on October 31, 2019. Am. Compl. at 6.
Attached to Klein's amended complaint is a document titled, “Additional Facts,” which specifies further details regarding the incident in question. Dkt. No. 24-1.
One of the individuals who Klein alleges was present during the incident was Mital. Id. at 5. Although Klein does not allege that Mital was involved in any physical assault, he alleges that she made a false statement to the police, thereby resulting in his arrest. Id. at 6.
B. Procedural History
On August 23, 2021, Klein filed a complaint against the MTA, the MTA Police Department, John Does 1 through 4, and Jane Does 1 and 2 alleging violations of his Fourth, Sixth, and Eighth Amendment rights under the United States Constitution. Complaint, Dkt. No. 2, at 2. By order dated September 10, 2021, the MTA was directed to identify the John and Jane Doe defendants and provide Klein with their names. Dkt. No. 6. Following that order, Klein amended his complaint to add the following individuals as defendants: Kirk Thomas, Police Officer Danielle Hughes, Captain Jennifer Kelly, Lieutenant Matthew Sauer, Police Officer Brian Denicola, and Gina Mital. Am. Compl. at 1.
On August 26, 2022, Mital was served with the amended complaint. See Dkt. No. 52. On November 30, 2022, she moved to dismiss for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Mital's Motion to Dismiss, Dkt. No. 62; Memorandum of Law in Support of Motion to Dismiss Plaintiff's Amended Complaint (“Def. Mem.”), Dkt. No. 62-1. In opposition to Mital's motion, Klein filed a number of letters: one filed December 1, 2022 (“December 1 Letter”), Dkt. No. 63; one filed December 2, 2022 (“December 2 Letter”), Dkt. No. 64; one filed January 30, 2023 (“January 30 Letter”), Dkt. No. 77; and one filed February 4, 2023 (“February 4 Letter”), Dkt. No. 83. In addition, on February 3, 2023, Klein cross-moved for leave to further amend the complaint. Notice of Motion (“Mtn. Am.”), Dkt. No. 81. Mital did not file a reply in support of her motion nor did she file opposition papers in response to Klein's cross-motion.
As Klein's letters are not dated, these dates reflect when the letters appeared on the Court's docket.
This case was referred to me on February 28, 2022 for general pretrial supervision, and an amended order of reference was entered on December 5, 2022 referring Mital's motion and Klein's cross-motion to me for a report and recommendation. Dkt. Nos. 32, 65.
II. DISCUSSION
A. Legal Standards
1. Failure to State a Claim Under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the Court “construes the pleadings and affidavits in the light most favorable to plaintiffs . . . the Court will not draw argumentative inferences in the plaintiff's favor and need not accept as true a legal conclusion couched as a factual allegation.” Gilbert v. Indeed, Inc. 513 F.Supp.3d 374, 391 (S.D.N.Y. 2021) (cleaned up).
2. Standards Applicable to Pro Se Litigants
Submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). As a result, the Court may consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See, e.g., Freud v. New York City Department of Education, No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss”) (citing Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)); see also Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court-consistent with its duty to liberally construe pro se pleadings-will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief[.]” Geldzahler v. N.Y.Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up).
3. § 1983 Claims
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the challenged conduct (1) was “committed by a person acting under color of state law,” and (2) “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
B. Analysis
1. Klein's §1983 Claims Against Mital Should Be Dismissed
Mital contends that Klein has failed to state a claim pursuant to § 1983 because although she is a Connecticut Probation Officer, she was not a state actor during this incident. Def. Mem. 7-8. The Court agrees. To state a plausible claim under § 1983, a plaintiff must allege that a state actor violated a right protected by the U.S. Constitution. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1988); see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Klein has not done so.
Klein does not cite to § 1983 in his amended complaint, but includes a reference to it in the February 4 Letter. The Court reads the amended complaint as an attempt to allege claims normally cognizable in federal court pursuant to § 1983.
First, taking Klein's allegations as true, he has not demonstrated that Mital participated in the alleged incident as a state actor. Klein states that four MTA police officers walked toward him “along with Kirk Thomas, and a woman [he] later found out to be Gina Mital, a Stamford Probation officer.” Am. Compl. at 5. Beyond stating that he “later” learned that Mital was a probation officer, Klein puts forward no allegations that Mital was acting in her capacity as a government employee. Accordingly, the first prong required by § 1983 has not been met.
Next, Klein has not sufficiently alleged that Mital was personally involved in the deprivation of his constitutional rights. To state a claim under § 1983, “a plaintiff must assert direct and personal involvement of the defendant in the alleged constitutional deprivations.” Ella v. Jackson, No. 95-CV-2314 (AGS), 1996 WL 673819, at *2 (S.D.N.Y. Nov. 20, 1996) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). In his letters to the Court, Klein claims summarily that “Mital was directly involved in the violation of [his] constitutional rights,” December 1 Letter; that Mital caused his arrest and prosecution “by making false statements to police and abusing her authority as a member of law enforcement,” and that “Mital also committed another 42 U.S.C. 1983 violation by violating [his] right to fair trial,” February 4 Letter. In support of these claims against Mital, Klein alleges that: she made a false statement, “while representing herself as a member of law enforcement, result[ing] in [his] wrongful arrest and assault;” she “assisted in [his] arrest by accompanying the MTA officers mentioned in this suit to arrest [him];” and she stated that Klein “made ‘racial' remarks, paint[ing] . . . [him] a racist.” January 30 Letter.
While Klein alleges that Mital was present at the time he was arrested and made certain remarks, his allegations do not contain the requisite specificity. Moreover, even if Mital did make a false statement resulting in his arrest, as noted above, Klein has not sufficiently pled that she was acting under the color of state law. See, e.g., Khan v. City of New York, No. 14-CV-4665 (SLT) (VMS), 2016 WL 1128298, at *5 (E.D.N.Y. Feb. 1, 2016) (private actor's complaint to police resulting in plaintiff's arrest insufficient for § 1983 claim) (citation omitted), adopted by 2016 WL 1192667 (Mar. 21, 2016). Taken in their best light, Klein's allegations against Mital are too generalized and vague to give rise to a § 1983 claim. See, e.g., Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“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”).
Although not in the amended complaint, Klein claims in his letters to the Court, that Mital is also “liable for malicious prosecution.” To establish a claim for malicious prosecution under § 1983, Klein must allege the elements of malicious prosecution pursuant to New York state law, which are: “(1) the commencement or continuation of a criminal proceeding; (2) the favorable termination of that proceeding; (3) lack of probable cause; and (4) malice.” Keaton v. Bratton, No. 16-CV-2313 (VEC) (SDA), 2018 WL 10758587, at *6 (S.D.N.Y. Feb. 5, 2018) (citing Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010)), adopted sub nom. Keaton v. United States, 2018 WL 10758583 (Mar. 23, 2018). Klein has not alleged that Mital was directly involved in “the commencement or continuation of a criminal proceeding.” In order to commence a proceeding, Mital must have played “an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” McDaniel v. City of New York, 585 F.Supp.3d 503, 516 (S.D.N.Y. 2022) (citations omitted), adopted by No. 19-CV-11265 (AT) (RWL), 2022 WL 874769 (Mar. 24, 2022). Examples of playing an active role include “having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints.” Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y. 2006) (citation omitted). Klein does not allege these types of facts nor anything similar with regard to Mital. Accordingly, his malicious prosecution claim against her is without merit.
In sum, the Court finds that even construing his claims liberally, Klein has not met the standard to survive a motion to dismiss. Therefore, his federal claims against Mital should be dismissed.
2. Klein's Slander Claim Against Mital Should Also Be Dismissed
In the amended complaint, Klein seeks an award of $250,000 as a result of “slander by Gina Mital for making a false statement to the police, and discrimination.” Am. Compl. at 6. Because Klein's claims against Mital under federal law should be dismissed, Mital argues that the Court should decline to exercise supplemental jurisdiction over the state law claim of slander. Def. Mem. at 8-10. However, “a district court may not decline to exercise jurisdiction over state law claims where federal claims remain against other defendants and the state law claims ‘form part of the same case or controversy.'” Mejia v. Davis, No. 16-CV-9706 (GHW), 2018 WL 333829, at *7 (S.D.N.Y. Jan. 8, 2018) (quoting Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir. 2002)).
Here, it appears from the face of the pleadings that the state law claim raised against Mital is “based on the same factual allegations that underpin the remaining Section 1983 claims” that are pending against the other defendants. Id. Klein alleges that Mital made a slanderous remark during the incident on the train and her remark contributed to his arrest. Am. Compl. at 6; February 4 Letter. Accordingly, there appears to be sufficient factual overlap between the claims such that the Court should exercise supplemental jurisdiction over the state law claim, at least at this juncture of the case.
Nonetheless, Klein's slander claim against Mital still fails. Under Connecticut law the statute of limitations for intentional torts, including slander, is two years, and the claim begins to accrue at “the date of the act complained of.” Watson v. Wheeler Clinic, Inc., No. 21-CV-0503 (MPS), 2022 WL 2916825, at *13 (D. Conn. July 25, 2022) (citing Conn. Gen. Stat. § 52-597). Here, Klein alleges that Mital made the slanderous statement on August 22, 2018. Am. Compl. at 5. The amended complaint adding the claim of slander was not filed until December 20, 2021, more than three years later. Thus, Klein's claim for slander against Mital should be dismissed with prejudice as time-barred.
“A federal court exercising supplemental jurisdiction over state law claims must apply the choice of law rules of the forum state, here New York, to determine which state's substantive law applies.” Genao v. City of New York, No. 20-CV-4872 (MKV), 2022 WL 845750, at *3 (S.D.N.Y. Mar. 22, 2022) (citation omitted). Following New York's “interest analysis approach, New York courts apply the law of the jurisdiction with the most significant interest in, or relationship to, the dispute.” ODiah v. New York City, No. 02-CV-274 (DLC), 2002 WL 1941179, at *15 (S.D.N.Y. Aug. 21, 2002) (cleaned up). Here, Klein alleges the incident, and specifically Mital's slanderous remarks, occurred while at the train station in Stamford, Connecticut. Am. Compl. at 5. Accordingly, the Court applies Connecticut state law. Notably, the statute of limitations for slander under New York law is one year, so the claim would still be time-barred if New York law applied. N.Y. C.P.L.R. § 215(3).
Klein's original complaint was filed on August 23, 2021, also more than three years after the incident. Dkt. No. 2.
3. Klein Should Be Denied Leave to Further Amend
In a letter filed on the docket on December 1, 2022, Klein requests “permission to amend his complaint” because, “as a non-trained pro se litigant, [he] did not include wrongful arrest and malicious prosecution [as] to defendant Mital in the correct legal language.” Dkt. No. 63. Following his letter, the Court entered an order on December 6, 2022 directing Klein to file a motion for leave to amend. Dkt. No. 66. After multiple extensions (see Dkt. Nos. 74, 80), Klein filed his motion for leave to amend the complaint on February 3, 2023. Dkt. No. 81. However, Klein only filed a notice of motion, without including his proposed amended complaint. The notice of motion merely states that Klein requests the Court to grant his “motion for leave to amend [his] complaint,” and that “[a]s a pro se plaintiff [he] ask[s] the courts to grant [him] this leave to amend.” Dkt. No. 81, at 1-2.
In the Second Circuit, “a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (cleaned up). Indeed, the Federal Rules of Civil Procedure mandate that leave to amend should be “freely give[n] . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2).
However, a court may dismiss the claims of a pro se litigant without leave to amend when “the substance of the claim pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988), is “based on an indisputably meritless legal theory,” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (citation omitted), or where “the problem with [the plaintiff's] causes of action is substantive” such that “[b]etter pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Klein has already amended his complaint once, and having submitted several letters to the Court as well, he has had multiple opportunities to cure the deficiencies in his claims against Mital. Moreover, his slander claim is time-barred. Thus, any attempt by Klein to replead would be futile and all claims against Mital should be dismissed with prejudice. See, e.g., Cuoco, 222 F.3d at 112 (leave to amend pro se complaint denied where amendment would be futile).
III. CONCLUSION
For the reasons stated herein, the Court should grant Mital's motion to dismiss and deny Klein's cross-motion for leave to amend.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable John P. Cronan, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Cronan.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Klein does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for Mital. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.