Opinion
23-CV-5887 (LTS)
01-08-2024
CHARMEEN DENISE WASHINGTON, Plaintiff, v. YASMIN ABEDIN, M.D., Metropolitan Hospital, Defendant.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Charmeen Denise Washington brings this action pro se. By order dated November 3, 2023, the Court granted Plaintiff request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth in this order, the Court dismisses the action for failure to state a claim, but grants Plaintiff 60 days' leave to replead.
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 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
Plaintiff Charmeen Denise Washington filed her original complaint on July 7, 2023, invoking the court's federal question jurisdiction, and alleging that Defendant Dr. Yasmin Abedin, a doctor at Metropolitan Hospital, violated “Human Hippa Rights and Universal law. NEC Article 320. Human Rights with Homicidal Intention.”(ECF No. 1 at 2.) In her original complaint, Plaintiff alleged that from “January 18, 1994 - January 28, 1994,”
The Court quotes from the complaint and amended complaint verbatim. All grammar, punctuation, and spelling are in the original unless otherwise indicated.
I Charmeen Washington was Implanted with Encrypted Ocilating Radio Frecency Identification Electronics in my second and third valve of my heart the Second Valve a 4-10 milimeter Electronic and the Second Valve Electronic Implant is in Assetron Active Causin Slight Strokes and Suffication.
According to the Proffessional Claims Beaural ans ECS Buisness.(Id. at 5.)
In the section of the form complaint that asks Plaintiff to describe her injuries, Plaintiff writes,
Rape, Assault, Falty diasnosis, Psycosis and Obesity as well as pety lawseny and Job loss and Homelessness.(Id. at 6.)
In the section of the form complaint that asks Plaintiff to state the damages she seeks, Plaintiff writes,
my Job, my residence, my Families lives due to open Access and my hygiene mentally and physcially and teeth. and Education.(Id.)
On September 27, 2023, without direction from the court, Plaintiff amended her complaint against Defendant. In her amended complaint, she now asserts civil rights claims pursuant to 42 U.S.C. § 1983 and alleges that the events giving rise to her claims occurred on January 18, 1994, in the Metropolitan Nursery Incubator. She alleges,
My intestines, Brain, Inner ear and Every Organ has a Osilating Implant Because I was premature around doctors such as Deliving Doctor Yasmin Abedin. Even my heart 2nd and 3rd Valve.(ECF No. 5 at 4.) She seeks $100 million dollars in damages. Plaintiff attaches 833 pages of attachments to her complaint, but it is unclear how these documents pertain to any claims she is seeking to assert against Defendant Dr. Abedin.
DISCUSSION
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
A. Claims against Dr. Yasmin Abedin, Metropolitan Hospital
Plaintiff alleges that Dr. Yasmin Abedin was employed at Metropolitan Hospital on the date that the events giving rise to her claims occurred. Metropolitan Hospital is a facility operated by the NYC Health + Hospitals Corporation (“HHC”). Although HHC has the capacity to be sued, see N.Y. Unconsol. Laws § 7385(1), Metropolitan Hospital, as a facility within HHC, lacks the capacity to be sued. Ochei v. Coler/Goldwater Mem'l Hosp., 450 F.Supp.2d 275, 288 (S.D.N.Y. 2006) (“[A] facility owned and operated by HHC . . . may not be sued in its independent capacity”); Ayala v. Bellevue Hosp., No. 94-CV-1551 (WHP), 1999 WL 637235, at *3 (S.D.N.Y. Aug. 20, 1999) (“[S]ince Bellevue is merely a facility within HHC, it too lacks the capacity to be sued.”). The Court therefore construes Plaintiff's claims as also against HHC.
To state a claim under Section 1983 against an entity such as HHC, it is not enough for the plaintiff to allege that one of its employees or agents engaged in some wrongdoing. The plaintiff must show that the entity itself caused the alleged violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (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)); Mejia v. NYC Health & Hosp. Corp., No. 16-CV-9706, 2018 WL 3442977, at 5 (S.D.N.Y. July 17, 2018) (“As a municipal corporation, HHC and its employees are state actors for purposes of Section 1983.”).
In other words, to state a Section 1983 claim against a municipal entity, 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).
Although Plaintiff asserts that her rights were violated, it is not clear from her complaint what Defendant allegedly did or failed to do that violated her rights under the United States Constitution or any federal law. Plaintiff therefore fails to state a claim under Section 1983. Plaintiff is granted leave to amend her complaint to assert enough facts to state a claim for relief “that is plausible on its face.” Twombly, 550 U.S. at 570. The Court grants Plaintiff leave to file an amended complaint also naming HHC as a defendant and alleging facts giving rise to a municipal liability claim against HHC.
B. Statute of Limitations
The statute of limitations for Section 1983 claims is found in the “general or residual [state] statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013).
Plaintiff's claims arise out of events that occurred January 18, 1994, presumably the date Plaintiff was born.Plaintiff filed this complaint on July 7, 2023, approximately 29 years after her claims accrued. Plaintiff's Section 1983 claims are therefore likely time barred.
Plaintiff attached a copy of her birth certificate to her original complaint; that certificate lists January 18, 1994 as her date of birth. (ECF No. 1 at 8.)
The doctrine of equitable tolling permits a court, “under compelling circumstances, [to] make narrow exceptions to the statute of limitations in order ‘to prevent inequity.'” In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation omitted). The statute of limitations may be equitably tolled, for example, when a defendant fraudulently conceals from a plaintiff the fact that the plaintiff has a cause of action, or when the plaintiff is induced by the defendant to forego a lawsuit until the statute of limitations has expired. See Pearl, 296 F.3d at 82-83. In addition, New York law provides that where a person “is under a disability because of . . . insanity at the time the cause of action accrues,” the applicable statute of limitations will be tolled. N.Y.C.P.L.R. § 208; Gardner v. Wansart, No. 05-CV-3351, 2006 WL 2742043, at *5 n.4 (S.D.N.Y. Sept. 25, 2006) (although mental illness is on its own insufficient for equitable tolling purposes, tolling is appropriate if a plaintiff is insane at the time the cause of action accrues and is “unable to protect [his] legal rights because of an overall inability to function in society”). New York also provides by statute for other circumstances in which a limitations period may be tolled. See, e.g., N.Y.C.P.L.R. § 204(a) (where commencement of an action has been stayed by court order), id. at § 204 (where a dispute has been submitted to arbitration but is ultimately determined to be non-arbitrable), id. at § 207(3) (defendant is outside New York at the time the claim accrues), id. at § 208 (plaintiff is disabled by infancy or insanity), id. at § 210 (death of plaintiff or defendant).
Plaintiff does not provide any facts suggesting that the statute of limitations should be equitably tolled in this case.Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters v. Indus. and Com. Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted.” (internal quotation marks and citation omitted)); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on statute of limitations grounds); see also Abbas, 480 F.3d at 640 (concluding that district court should grant notice and opportunity to be heard before dismissing complaint sua sponte on statute of limitations grounds).
Even if the Court assumes that the statute of limitations was tolled because Plaintiff was a minor at the time the alleged events giving rise to her claim occurred, and the limitations period began to run when she reached maturity, see N.Y.C.P.L.R. § 208, her claims would still be time-barred. Plaintiff was born on January 18, 1994, when the alleged events occurred. She therefore would have turned eighteen in 2012, and she would have had three years from that date, until sometime in 2015, to file a timely claim.
Because Plaintiff's Section 1983 claims are untimely and she does not allege any facts demonstrating that equitable tolling should apply, the Court dismisses such claims for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Jones v. Bock, 549 U.S. 199, 215 (2007) (a complaint that “show[s] that relief is barred by the applicable statute of limitations” is “subject to dismissal for failure to state a claim”); Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018) (same).
C. Supplemental Jurisdiction
A district court may decline to exercise supplemental jurisdiction over state-law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Because Plaintiff does not currently state a federal claim, the Court declines, at this time, to exercise supplemental jurisdiction over any state-law claims that Plaintiff is attempting to raise in her complaint. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'”) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
D. Motion for Counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.” Cooper, 877 F.2d at 172. Because Plaintiff's amended complaint fails to state a claim, and her claims are likely untimely, her motion for counsel, ECF No. 4, is denied without prejudice to renewal at a later date.
E. Leave to Replead
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)). In an abundance of caution, therefore, the Court grants Plaintiff 60 days' leave to replead her claims. The second amended complaint must allege facts giving rise to a municipal liability claim against HHC, may also name HHC as a defendant, and allege any facts demonstrating that equitable tolling should apply. The Court advises Plaintiff to limit her submission to no more than 20 pages.
Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the second amended complaint that Plaintiff wants the Court to consider in deciding whether the second 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 second amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's second amended complaint will completely replace, not supplement, the original and amended complaints, any facts or claims that Plaintiff wants to include from the original and amended complaints must be repeated in the second amended complaint.
F. Litigation History
Plaintiff has recently filed a number of other pro se actions in this court, in several of which the court has determined that it lacks subject matter jurisdiction of Plaintiff's claims. See Washington v. Chong, ECF 1:23-CV-1936, 4 (S.D.N.Y. July 24, 2023) (dismissing complaint against a doctor for lack of subject matter jurisdiction); Washington v. Tocco, ECF 1:23-CV-5561, 13 (S.D.N.Y. Oct. 10, 2023) (dismissing complaint against a doctor for lack of subject matter jurisdiction); Washington v. JP Morgan Chase Bank Inc., ECF 1:23-CV-5819, 6 (S.D.N.Y. Oct. 11, 2023) (dismissing action without prejudice for Plaintiff's failure to update her address of record as directed by the court); Washington v. New York Police Dep't, ECF 1:23-CV-5820, 6 (S.D.N.Y. Oct. 10, 2023) (dismissing action for failure to state a claim); Washington v. Lindsay, ECF 1:23-CV-5888, 6 (Oct. 6, 2023) (directing Plaintiff to file amended complaint); Washington v. Paris Production Berlin, ECF 1:23-CV-5922, 6 (S.D.N.Y. Aug. 28, 2023) (directing Plaintiff to file amended complaint); Washington v. Shukler, ECF 1:23-CV-8030, 4 (S.D.N.Y. Sept 27, 2023) (amended complaint filed, matter pending); Washington v. Ortiz, ECF 1:23-CV-9647, 5 (S.D.N.Y. Nov. 27, 2023) (dismissing action for lack of subject matter jurisdiction and granting Plaintiff leave to replead to demonstrate that the court has subject matter jurisdiction of her claims and that she is entitled to relief).
Plaintiff is warned that if she abuses the privilege of proceeding IFP, she may be ordered to show cause why she should not be barred, under 28 U.S.C. § 1651, from filing new actions IFP in this Court without prior permission. See Sledge v. Kooi, 564 F.3d 105, 109-10 (2d Cir. 2009) (discussing circumstances where frequent pro se litigant may be charged with knowledge of particular legal requirements.)
CONCLUSION
Plaintiff's amended complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff's motion for counsel, ECF No. 4, is denied without prejudice to renewal at a later date.
Plaintiff is granted leave to file a second amended complaint that complies with the standards set forth above. Plaintiff must submit the second amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as a “Second Amended Complaint,” and label the document with docket number 23-CV-5887 (LTS). A Second 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 she cannot show good cause to excuse such failure, the Court will direct the Clerk of Court to enter judgment in this case.
The Clerk of Court is instructed to hold this matter open on the docket until a civil judgment is entered.
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.