Opinion
05-cv-03408-NG-LB.
October 11, 2005
MEMORANDUM AND ORDER
Plaintiff, Richard E. Stone, a Manhattan resident who receives public assistance at a Job Center in Brooklyn, brings this pro se action pursuant to 42 U.S.C. § 1983, alleging, inter alia, that defendants have violated his rights by refusing to re-assign him to a Job Center closer to his home or to act on plaintiff's allegations of employee misconduct. Plaintiff's application to proceed in forma pauperis is granted. However, for the reasons set forth below, plaintiff's complaint is dismissed.
BACKGROUND
Plaintiff, who lives on West 23rd Street in Manhattan, receives public assistance from the New York City Human Resources Administration ("HRA") and must periodically visit a "Job Center." Sometime after plaintiff moved to West 23rd Street, HRA re-assigned his case from a "Job Center" in Queens to the Waverly Job Center at 12 West 14th Street, Manhattan, which was "within 30 minutes" of plaintiff's residence. Complaint at 2. However, shortly thereafter, in September 2003, plaintiff was re-assigned to a Job Center located on Chapel Street in downtown Brooklyn (hereinafter, the "Brooklyn Job Center"). HRA told plaintiff that it was re-assigning him because the Brooklyn Job Center "deals specifically with veterans issues." Id. at 5. Plaintiff acknowledges that he is a veteran, but claims this explanation is "spurious" because "the veterans counselor at the [Brooklyn] center stated that the [plaintiff] should use the Veterans Counselor located at the VA Hospital in Manhattan." Id.
As part of the welfare reforms in the late 1990's, HRA converted welfare offices into "Job Centers." See www.ci.nyc.ny.us/html/hra/html/serv_welfarework.html. Although this conversion, according to HRA's website, changed the emphasis to "work first," Job Centers continue to provide "referrals for Medicaid, Food Stamp and other emergency assistance benefits."Id.
Throughout his complaint, plaintiff refers to this Brooklyn facility as "Job Center # 62." However, according to HRA's website, the proper name of this center, which "[p]rimarily services public assistance recipient cases in which at least one household member is a Veteran," is the Veterans Service Center.See www.ci.nyc.ny.us/html/hra/html/serv_welfarework.html.
Plaintiff speculates that the re-assignment "threatens" his rights under the Medicaid and Food Stamp programs, stating:
If there is a wrong amount (less than what should be) on the Benefit card; . . . [i]f the card is termed invalid by medical personnel in a medical emergency; . . . [i]f the Card is lost, stolen, damaged or not activated, . . . [plaintiff] must travel miles to another borough, sometimes without money. . . .Id. at 4. However, plaintiff does not allege that he has ever actually lost or been denied benefits solely because he could not travel to Brooklyn. Rather, he implies that he has been denied benefits as a result of the incompetence and/or misconduct of personnel at the Brooklyn Job Center. Plaintiff alleges that a Rent Specialist named Ford — whom he describes as "an intemperate and peculiar person . . . who seems gleeful at a client's misfortune" — and a Job Specialist named either Dawkins or Fuller "have shown a reluctance or downright refusal to assist" him.Id. at 3-4. Plaintiff claims that these or other HRA employees have falsely reported that plaintiff failed to appear for appointments and have "[w]rongly reduc[ed] . . . without good cause" his "public assistance cash allotments." Id. at 2, 3. Plaintiff also alleges that the employees' "misconduct" has "almost threatened . . . [plaintiff's] elimination" from public assistance, but that "the Fair Hearing by the State was . . . [plaintiff's] salvation, much to these workers's disappointment." Id. at 4.
Plaintiff has "communicated via various methods" with "Commissioner Eggleston et al.," requesting that he be transferred back to Manhattan and that HRA address the "problems" plaintiff has had with HRA employees over the last two years.Id. at 3. According to plaintiff's complaint, these communications listed the following five problems:
1. Refusal on the part of personnel to process [plaintiff] when he showed up.
2. Falsely reporting that the [plaintiff] never showed up for an appointment. . . .
3. Wrongly reducing the public assistance . . . amount without good cause. . . .
4. One employee, in front of many people, told the [plaintiff] to go commit suicide.
5. Generally, the staff at these job centers are invariably mean-spirited, indifferent or incompetent.Id.
Eggleston has not responded to plaintiff's communications. Perez, on the other hand, appears to have responded to plaintiff — at least to the extent of informing him that Dawkins' name is actually Fuller. However, the complaint specifically alleges that Perez has not taken appropriate remedial action. Id. at 3
Plaintiff's complaint asserts, "She [Eggleston] can't claim to not have gotten any of these communications over a two year period; and if she did and did nothing, this horrible." Complaint at 3.
Plaintiff now brings this action against Eggleston and Perez, seeking unspecified "[e]quitable relief within [ 42 U.S.C. § 1983]" and an order directing that his case be re-assigned "based upon NYCHRA's policy of proximity." Id. at 5. Plaintiff's complaint alleges that this Court has jurisdiction under 42 U.S.C. § 1983 because plaintiff suffered "a deprivation of rights, privileges and immunities by state actors." Id. at 5. The complaint specifically alleges a violation of plaintiff's substantive due process rights under the Fourteenth Amendment, asserting "that there is no legitimate gov't function to require that . . . [plaintiff], a veteran, . . . travel an unreasonable distance to claim his Medicaid, Food Stamp and [public assistance] rights, to a far-flung center." Id. at 4. The complaint also suggests a violation of federal statutory rights, stating that the refusal by unnamed HRA personnel "to process and treat properly the Plaintiff in an efficient manner has and does threaten . . . [plaintiff's] rights" under the federal Medicaid and Food Stamp Programs. Id. at 4.
DISCUSSION
Title 28, section 1915, of the United States Code provides that a district court "shall dismiss" an action "if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Because plaintiff is proceeding pro se, the pleadings must be read liberally and interpreted as raising the strongest argument they suggest. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Although plaintiff's complaint alleges that this action is brought pursuant to 42 U.S.C. § 1983, the complaint does not state a § 1983 cause of action against either of the named defendants. In order to maintain a § 1983 action, a plaintiff must allege two essential elements. First, "the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citation omitted). Second, "the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Id.
"It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d. 880, 885 (2d Cir. 1991)). Supervisory liability cannot rest on respondeat superior or on "linkage in the . . . chain of command." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert. denied, ___ U.S. ___, 125 S.Ct. 971 (2005). In order to establish supervisory liability, a plaintiff must show "(1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring." Id. (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
Although plaintiff alleges that he told defendants "via various methods" about "problems" he encountered at HRA over the last two years, Complaint at 3, plaintiff's communications do not appear to raise any federal constitutional or statutory violations. Plaintiff's complaint specifically alleges only one constitutional violation, asserting that HRA's "center assignment flies in the face of substantive due process." Id. at 4. However, the decision to re-assign plaintiff to the Brooklyn Job Center does not constitute a Fourteenth Amendment Due Process violation.
Substantive due process "prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty." United States v. Salerno, 481 U.S. 739, 746 (1987) (internal quotations and citations omitted). To state a substantive due process claim, a complaint "must allege governmental conduct that `is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). While there is "no calibrated yard stick" by which to determine precisely what conduct is conscience-shocking, "malicious and sadistic abuses of power by government officials, intended to oppress or to cause injury and designed for no legitimate government purpose, unquestionably shock the conscience." Id. (internal quotations and citations omitted). On the other hand, government action that is merely "incorrect or ill-advised" does not violate substantive due process. Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir. 1995) (quoting Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)).
Plaintiff alleges that there is "no legitimate gov't function to require that . . . [plaintiff], a veteran, . . . travel" to Brooklyn to claims his benefits, Complaint at 4, and alleges that his center assignment was arbitrary and capricious. Id. at 2. However, plaintiff's own complaint acknowledges that HRA has a reason for assigning him to the Brooklyn Job Center: "this center deals specifically with veterans issues." Id. at 5. Although plaintiff claims that this reason is "spurious," his basis for making this claim — that a counselor at the Brooklyn Job Center referred him to a counselor at the VA Hospital on East 23rd Street in Manhattan — only serves to prove that personnel at the Job Center have at least some specialized knowledge concerning the services available to veterans.
Moreover, the Brooklyn Job Center can hardly be characterized as "far-flung" or "an unreasonable distance" from plaintiff's residence. This Court will take judicial notice that the Brooklyn Job Center is only a few blocks from the Jay Street-Boro Hall subway station, which is at most eight subway stops from the station closest to plaintiff's West 23rd Street residence. Although plaintiff may not be able to walk to the Brooklyn Job Center, it is nonetheless readily accessible to plaintiff. Therefore, there is nothing in the complaint to suggest that HRA's assignment of plaintiff to the Brooklyn Job Center violates plaintiff's substantive due process rights.
The other "problems" which plaintiff addressed in his communications to "Commissioner Eggleston et al." do not rise to the level of Constitutional violations. While it is obviously inappropriate, unprofessional and reprehensible for an HRA employee to suggest that an applicant "go commit suicide," this sort of "verbal abuse does not, by itself, violate constitutional rights." See Abecasis v. Mr. Chestnut, No. 93 Civ. 4246, 1998 WL 151035, at *7 (S.D.N.Y. Mar. 31, 1998) (citing cases). Moreover, even if all HRA employees are, as plaintiff asserts, "mean-spirited, indifferent or incompetent," HRA is not violating plaintiff's constitutional or statutory rights by forcing him to deal with them. Similarly, plaintiff's constitutional and statutory rights were not violated by an HRA employee's allegedly false report that plaintiff missed an appointment, especially since plaintiff implies that he has not been denied any benefits as a result of that report.
CONCLUSION
For the reasons stated above, plaintiff's complaint is dismissed. The Clerk of Court is directed to close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.