Opinion
20-CV-5472 (PAE) (JLC)
06-29-2022
JAMA TASFAY and DESMOND ROLLE, Plaintiffs, v. MELISSA RAMOS et al., Defendants.
Te Honorable Paul A. Engelmayer, United States District Judge
REPORT & RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
Plaintiffs Jama Tasfay and Desmond Rolle, proceeding pro se, brought this action against Defendants Acacia Network, Inc. (“Acacia”) and Johani Vialet-Rodriguez (collectively, “Acacia Defendants”), and Defendants Nadia DiSalvo and Melissa Ramos (collectively, “Municipal Defendants”). Plaintiffs allege violations under the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq., and violations of their First and Fourth Amendment rights pursuant to 42 U.S.C. § 1983 (“Section 1983”). This case was originally assigned to the Honorable Alison J. Nathan. While assigned to her, Judge Nathan issued two decisions: in the first decision, issued on September 28, 2021, she granted Vialet-Rodriguez's motion to dismiss the amended complaint and dismissed her as a defendant, granted Acacia's motion to dismiss the FHA claims, but denied its motion to dismiss the Section 1983 claims (Dkt. No. 55); in the second decision, issued on February 14, 2022, she granted the Municipal Defendants' motion to dismiss in its entirety (Dkt. No. 72). Thus, the only remaining defendant in the case is Acacia and the only remaining claims are those brought against Acacia under Section 1983.
Having now answered the amended complaint, Acacia has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In the interim, the case has been reassigned from Judge Nathan to Judge Engelmayer, who has referred Acacia's pending motion to me for a report and recommendation (Dkt. No. 73). For the following reasons, I recommend that the motion be granted.
I. BACKGROUND
This case concerns plaintiffs' alleged removal, in May 2019, from a New York City Department of Homeless Services (“DHS”) shelter that is operated by Acacia. As Judge Nathan has already issued two decisions in this case summarizing the relevant factual background, the Court hereby incorporates those summaries by reference and will not repeat that background here.
Following its answer to the amended complaint (“Am. Compl.”) (Dkt. No. 9), filed on October 26, 2021 (Dkt. No. 60), Acacia moved for judgment on the pleadings on December 15, 2021 (Dkt. No. 64). In its motion, Acacia argues that plaintiffs' Section 1983 claims must be dismissed because Acacia is not a state actor, and even if it were, the amended complaint does not state a claim under either the First or Fourth Amendment. Acacia's Memorandum of Law (“Def. Mem.”) dated December 15, 2021, at 7-13 (Dkt. No. 65). Along with its motion, Acacia filed the Declaration of Christopher Coyne (“Coyne Decl.”), dated December 15, 2021, which included as exhibits the New York State Division of Human Rights decision resolving Tasfay's discrimination complaint which arose from the same incident giving rise to this lawsuit and Acacia's answer (Dkt. No. 66). In addition, Acacia filed a Notice to Pro Se Litigants Pursuant to Local Civil Rule 12.1 (“Def. Notice”) (Dkt. No. 67).
Two exhibits are attached to the Coyne Declaration: Exhibit A is the New York State Division of Human Rights Determination and Order finding no probable cause to believe that Acacia and the other defendants had discriminated against Tasfay (Dkt. No. 66-1). Exhibit B is Acacia's answer to the amended complaint, which in turn, attached two exhibits: Exhibit A to the answer is the Declaration of Jose A. Rodriguez, Executive Vice President and Chief Legal Officer of Acacia, dated October 21, 2021 (the “Rodriguez Declaration”), and Exhibit B to the answer is the Amendment of Agreement between DHS and Acacia dated April 27, 2016 (Dkt. No. 66-2).
Plaintiffs filed no opposition papers to the motion, and accordingly Acacia submitted a brief letter in lieu of a reply brief on January 26, 2022 (Dkt. No. 69).
Thereafter, on January 31, 2022, plaintiffs filed a document entitled "Plaintiff''s [sic] Respons[e] to Defendants' Answer to the Verified Complaint,” in which they wrote:
The defense seems to be under the impression that if a motion is not responded to, the case should be dismissed. That is a foolish claim for a lawyer to make considering that the motion submitted in December adds nothing new to what they already claimed. It is basically the same to what was submitted in October. There is also one more major point why we decided not to respond. The Judge Allison [sic] Nathan's opinion memorandum already decided months before the worthless motion submitted in December that the case will be moving forward against Acacia and that a pretrial hearing will be scheduled. So these repeated motions submissions by the defense is just a huge waste of time. We are now waiting patiently for the pretrial hearing date to be set. I suggest they do the same.
Plaintiffs' Response filed January 31, 2022, at 1 (Dkt. No. 71).
II. DISCUSSION
A. Applicable Standards
1. Conversion of a Motion for Judgment on the Pleadings to a Motion for Summary Judgment
In adjudicating a Rule 12(c) motion, similar to a review of a motion under Rule 12(b)(6), district courts “generally” confine themselves to “the four corners of the complaint and look only to the allegations contained therein.” Drew v. City of New York, No. 18-CV-10714 (ER), 2019 WL 3714932, at *2 (S.D.N.Y. Aug. 6, 2019) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)). However, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). In this instance, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Id.; see also Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (“a district court acts properly in converting a motion for judgment on the pleadings into a motion for summary judgment when the motion presents matters outside the pleadings . . . [but the Court must] give sufficient notice to an opposing party and an opportunity for that party to respond”) (internal citations omitted).
Notably, “formal notice is not required where a party should reasonably have recognized the possibility that the motion might be converted into one for summary judgment and was neither taken by surprise nor deprived of a reasonable opportunity to meet facts outside the pleadings.” Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2018 WL 1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (cleaned up). While “pro se parties must have unequivocal notice of the meaning and consequences of conversion to summary judgment[,] . . . . a District Court need not advise a pro se litigant as to the nature of summary judgment where an opposing party has already provided the litigant with the requisite notice . . . .” Id. (cleaned up) (citing, among other cases, McPherson v. Coombe, 174 F.3d 276, 282 (2d Cir. 1999) (“[A]bsent a clear indication that the pro se litigant understands the nature and consequences of Rule 56 . . . he or she must be so informed by the movant in the notice of motion or, failing that, by the district court.”)).
2. Summary Judgment Standard STo prevail on a motion for summary judgment, the movant must “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In its adjudication, the Court must view all facts “in the light most favorable to the non-moving party.” Pennington v. D'Ippolito, 855 Fed.Appx. 779, 781 (2d Cir. 2021).
If the movant meets its burden to demonstrate the absence of a genuine issue of material fact, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . .” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of material fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
3. Standards Applicable to Pro Se Litigants
Because plaintiffs are proceeding pro se, their submissions are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). Nevertheless, the “duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up). Although submissions by pro se litigants are “construed liberally and interpreted to raise the strongest arguments that they suggest[,]” pro se litigants “must still meet the requirements necessary to defeat a motion for summary judgment.” Bolling v. City of New York, No. 18-CV-5406 (PGG) (RWL), 2021 WL 961758, at *5 (S.D.N.Y. Mar. 15, 2021) (cleaned up); see also Cuffee, 2018 WL 1136923, at *5.
B. Analysis
1. The Motion Should be Converted to One for Summary Judgment
In support of its motion for judgment on the pleadings, Acacia relies on certain exhibits attached to its answer. Def. Mem. at 8 (referring to Exh. A).These documents should be considered outside the pleadings because they are not (1) discussed or referred to in the amended complaint or any supplemental pleadings; (2) relied on by the pleadings so as to be considered integral to its allegations; or (3) a matter on which judicial notice may be taken. Fed.R.Civ.P. 12(d); see Cuffee, 2018 WL 1136923, at *5 (citing Johnson v. Cty. of Nassau, 411 F.Supp.2d 171, 178 (E.D.N.Y. 2006); Roberts v. Doe 1, No. 14-CV-9174 (AJP), 2015 WL 670180, at *2). However, the documents may still be considered by the Court if the motion for judgment on the pleadings can be converted to a motion for summary judgment. The motion can be converted if plaintiffs had “unequivocal notice of the meaning and consequences of conversion,” and “a reasonable opportunity to present all the material that is pertinent to the motion.” Cuffee, 2018 WL 1136923, at *5 (citations omitted).
Exhibit A to the answer, the Rodriguez Declaration, explains the relationship between Acacia and the City of New York.
Acacia contends that the Court can properly review these exhibits on a Rule 12(c) motion. See Coyne Decl. at ¶4, citing Lexon Ins. Co. v. Wells Fargo Bank, 619 Fed.Appx. 27, 28 (2d Cir. 2015) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (“On a 12(c) motion, the court considers the complaint, the answer, [and] any written documents attached to them”)). However, in Lexon, the district court limited its holding to consideration of the complaint and the accompanying documents. Lexon Ins., 619 Fed.Appx. at 28. In L-7 Designs, the attachments were found to be “integral” to the complaint and known to plaintiffs. L-7 Designs, Inc., 647 F.3d at 422. The same cannot be said here, as neither Exhibit B to Acacia's answer, an agreement between DHS and Acacia, nor Exhibit A, the Rodriguez Declaration, were known to plaintiffs or integral to their amended complaint.
Here, plaintiffs had unequivocal notice of the possibility of conversion. Acacia served plaintiffs with a “Notice to Pro Se Litigant Opposing Rule 12 Motion,” on December 25, 2021, which stated: “[y]ou are warned that the Court may treat this motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.” Def. Notice at 1. The notice described the “nature and consequences of summary judgment,” Hernandez, 582 F.3d at 308 (citing McPherson, 174 F.3d at 282), including that plaintiffs' claims may be dismissed without a trial if they did not respond to the motion on time by “filing sworn affidavits as required by Rule 56(c) and/or other documents.” Def. Notice at 1. The notice explained that they may not oppose the motion “simply by relying upon the allegations in [their] complaint” but rather “must submit evidence . . . countering the facts that support [their] claim[,]” otherwise “the Court may accept defendant's facts as true.” Id. at 1-2. Acacia also attached the text of Rule 56 of the Federal Rules of Civil Procedure to its notice. Id. at 3-4. As in Cuffee, such notice is considered “unequivocal” as courts in this Circuit “regularly hold” the type of notice given here to be “sufficient notice to convert a motion to dismiss into one for summary judgment.” Cuffee, 2018 WL 1136923, at *5 (collecting cases). In addition, plaintiffs had “a reasonable opportunity to meet facts outside the pleadings.” Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999)(quotation omitted). See, e.g., In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985) (citations omitted) (“Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits, the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.”). Although plaintiffs did not file an opposition to Acacia's motion for judgment on the pleadings, they did file a letter after Acacia had submitted its briefing (Dkt. No. 71).
Because plaintiffs had notice of the possibility for conversion and a reasonable opportunity to present pertinent material to the Court, the motion for judgment on the pleadings should be converted to one for summary judgment.
2. Acacia's Motion Should be Granted
Plaintiffs assert claims against Acacia pursuant to Section 1983. “To establish a claim under [Section 1983], [p]laintiff[s] must show that [they] [were] denied a constitutional or federal statutory right and that the deprivation of that right occurred under color of state law.” Favourite v. 55 Halsey Street, Inc., 381 F.Supp.3d 266, 282 (S.D.N.Y. 2019). Municipalities and municipal corporations, but not private entities, may be sued for damages as “persons” under Section 1983. Monell v. Dept. of Social Services, 436 U.S. 658, 669, 690-91 (1978). As discussed below, plaintiffs have failed to demonstrate that Acacia is a state actor under Section 1983 and further, they have not identified a constitutionally cognizable claim against Acacia under Section 1983.
a. Plaintiffs Have Failed to Demonstrate that Acacia is a State Actor
Under Section 1983, plaintiffs are required to “plead plausible factual allegations that the defendant against whom the claims are asserted was a ‘state actor.'” Hannan v. Rose, No. 18-CV-9878 (PGG) (DF), 2020 WL 3965341, at *14 (S.D.N.Y. Feb. 28, 2020), adopted by, 2020 WL 1903282 (Apr. 17, 2020). In addition, a private entity's actions may be attributable to the state if: “(1) the entity acts pursuant to the ‘coercive power' of the state or is ‘controlled' by the state (‘the compulsion test'); (2) when the state provides ‘significant encouragement' to the entity, the entity is a ‘willful participant in joint activity with the [s]tate,' or the entity's functions are ‘entwined' with state policies (‘the joint action test' or “close nexus test'); or (3) when the entity ‘has been delegated a public function by the [s]tate,' (‘the public function test').” Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)).
Through its submissions, especially the Rodriguez Declaration, Acacia has demonstrated that it is a not-for-profit corporation organized under the laws of the State of New York, publicly registered as such with the New York State Department of State. Rodriguez Declaration at ¶3. Although Acacia contracts with the City of New York, it is not owned, operated, or controlled by any governmental entity nor created by statute or local law. Id. at ¶7. Plaintiffs have not adduced any evidence to demonstrate otherwise. It is therefore undisputed that Acacia is a purely private entity. Accordingly, to move forward with their Section 1983 claims, plaintiffs must present evidence to establish that Acacia's actions were attributable to the state in order to meet the compulsion test, the joint action test, or the public function test. Sybalski, 546 F.3d at 257.
Here, plaintiffs have not even alleged, much less demonstrated, that Acacia was a state actor, or a private entity taking actions attributable to the state. Plaintiffs pleaded only the following in their amended complaint: (1) Acacia owned the shelter; (2) Vialet-Rodriguez is the director of the shelter and she was present during the incident in question, when plaintiffs were removed from the shelter; (3) another unnamed case manager was also present during the incident; and (4) as a result, Acacia was aware of plaintiffs' removal. Am. Compl. at 8. Plaintiffs have not pleaded any facts alluding to a relationship between DHS and Acacia that would satisfy any of the tests laid out in Sybalski. For example, plaintiffs have not alleged that Acacia has received funding from the government, nor have they alleged that in running the shelter, Acacia in some way answers to the government. Merely pleading that Acacia owns the shelter is insufficient as a matter of law to make a claim under Section 1983. See, e.g., Hannan, 2020 WL 3965341, at *15 (provision of housing is not a function exclusively reserved to the state).
Even if plaintiffs established that Acacia received funds from the City, it is well-established that “receipt of government funding, no matter how extensive, is insufficient to transform otherwise private conduct into state action.” Hannan, 2020 WL 3965341, at *15 (cleaned up).
b. Plaintiffs Do Not Have a Constitutionally Cognizable Claim
Even if plaintiffs were able to show that Acacia was a state actor, they have neither pleaded nor adduced evidence demonstrating a constitutionally cognizable claim. Plaintiffs assert Section 1983 claims against Acacia because its director and one of its employees were “present” when DHS officers removed them from the shelter and prevented them from filming the encounter on their phones. Am. Comp. at 8. Plaintiffs asserted the same claims against Vialet-Rodriguez and Judge Nathan granted her motion to dismiss for failure to state a claim. Tasfay v. Ramos, No. 20-CV-5472 (AJN), 2021 WL 4443303, at *3 (S.D.N.Y. Sept. 28, 2021). The same analysis applies here.
Plaintiffs have not made any allegations connecting Acacia to the events in question aside from alleging that Acacia owns the building where the shelter is located. “Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). However, “mere knowledge and acquiescence to unconstitutional conduct, or mere failure to act on a complaint, without more” is insufficient to demonstrate this requirement. Hawthorne by Hawthorne v. Cty. of Putnam, 492 F.Supp.3d 281, 294 (S.D.N.Y. 2020) (cleaned up). “Conclusory allegations that a private individual conspired or took concerted action with state actors will not suffice.” Watson v. Grady, No. 09-CV-3055 (KMK), 2010 WL 3835047, at *8 (S.D.N.Y. Sept. 30, 2010). Although Acacia employees were present during the encounter, plaintiffs do not claim that Acacia employees, and thereby Acacia, participated in the events in question. The mere fact that Acacia employees were present would not allow a reasonable jury to infer that Acacia was involved in the events to the degree required under Section 1983.
Moreover, plaintiffs have not alleged that Acacia seized their property, thereby defeating their Fourth Amendment claim. Nor have they alleged that Acacia prevented them from filming their interaction with DHS officers, thereby defeating their First Amendment claim. See Hawthorne by Hawthorne, 429 F.Supp.3d at 294 (“Plaintiff has failed to adequately show that [defendant]: (1) participated directly in the alleged constitutional violation, (2) created a policy or custom under which constitutional practices occurred, or allowed the continuance of such a policy or custom, (3) was grossly negligent in supervising subordinates who committed the wrongful acts, or (4) exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring.”).
3. Plaintiffs Should Not Be Given Leave to Further Amend
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) (citing Moorish Sci. Temple v. Smith, 693 F.2d 987, 990 (2d Cir. 1982)), is “based on an indisputably meritless legal theory,” Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (cleaned up), 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) (citation omitted); see also Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009) (internal quotation marks omitted). Plaintiffs have already amended their complaint once, and no further amendments can cure the deficiencies in their claims against Acacia, specifically with regard to whether Acacia is a state actor. Thus, any attempt by plaintiffs to replead these claims would be futile and the Section 1983 claims against Acacia should therefore be dismissed with prejudice. See Cuoco, 222 F.3d at 112 (leave to amend pro se complaint denied where amendment would be futile); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (citation omitted) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”) (affirming, in part, dismissal of claim with prejudice).
III. CONCLUSION
For the foregoing reasons, Acacia's motion for judgment on the pleadings should be converted to one for summary judgment and granted, and the amended complaint should be dismissed with prejudice.
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 shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer.
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 plaintiffs do not have access to cases cited herein that are reported on LexisNexis or Westlaw, they should request copies from counsel for Acacia. 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.
Finally, while plaintiff Tasfay has agreed to receive electronic service (Dkt. No. 6), plaintiff Rolle has not. Accordingly, the Clerk is respectfully directed to mail a copy of this Report and Recommendation to Rolle at 384 East 10th Street, Apt 2E, New York, New York, 10008 (Dkt. No. 30).