Carter v. rennessanice Men's Shelter; Department of Honeless Services; SCO; FJC Security Service; et al

Filing 5

MEMORANDUM DECISION AND ORDER, granting Pltff's 2 Motion for Leave to Proceed in forma pauperis. For the reasons discussed below, the Court dismisses the complaint for failure to state a claim upon which relief may be granted. Pltff is grante d 20 days leave to amend his complaint as detailed below. The amended complaint must be captioned "Amended Complaint" and bear the docket number 12-cv-5999 (BMC). No summons shall issue at this time and all further proceedings shall be stay ed until pltff has complied with this Order. If pltff fails to file an amended complaint within 20 days, the instant action shall be dismissed without prejudice and judgment shall enter. The Court certifies pursuant to 28 USC sec. 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. (Ordered by Judge Brian M. Cogan on 1/24/2013) c/m with unpublished decisions by chambers. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------

X

ANDERSON CARTER,

MEMORANDUM
DECISION AND ORDER

Plaintiff,
-against-

12 Civ. 5999 (BMC)(VMS)
RENNESSANICE [sic] MEN'S SHELTER;
RICH MILLER; DEBORAH ROBERSON;
BELLEVUE MEN'S SHELTER; MS. REID;
CITY OF NEW YORK; DEPARTMENT OF
HOMELESS SERVICES; SCO; FJC
SECURITY SERVICE,
Defendants.
-------------------------------------------------------COGAN, District Judge.

X

Plaintiff brings this pro se action against two homeless shelters, an associated service
provider and security company, and several individual employees alleging violations of the Due
Process and Equal Protection clauses of the Fourteenth Amendment and the Americans with
Disabilities Act of I990 ("ADA"). The Court grants plaintiffs request to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915. For the reasons discussed below, the Court dismisses the
complaint for failure to state a claim upon which relief may be granted. Plaintiff is granted twenty
days leave to amend his complaint as detailed below.

BACKGROUND
Plaintiff states that he was housed at the Renaissance Shelter located in Brooklyn, New
York and the Department of Homeless Services' Bellevue Men's Shelter ("Bellevue") in
Manhattan. He alleges that while at Bellevue he did not have access to full meals because "food
was being misappropriated" by kitchen staff. Plaintiff also alleges that he was denied access to his
mail. Moreover, plaintiff claims to suffer from schizoaffective disorder, and states that the delay

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in receiving his mail caused him to suffer a breakdown. Plaintiff further alleges that Renaissance
provided insufficient food, and that the staff failed to take any action to prevent others from
entering his room, stealing his property, or sleeping in his bed. Plaintiff seeks monetary damages.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action
where it is satisfied 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." An action is "frivolous" when either: (1) "the •factual contentions are clearly baseless,'
such as when allegations are the product of delusion or fantasy"; or (2) "the claim is 'based on an
indisputably meritless legal theory."' Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437
(2d Cir. 1998) (internal citation omitted).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of"all
well-pleaded, nonconclusory factual allegations"· in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
Ct. 1937 (2009)). A complaint must plead sufficient facts to "state a claim to relief that is
plausible on its face." Bell Atl. Com. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974
(2007).
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to read the plaintiffs prose complaint liberally and
interpret it as raising the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 127 S.
Ct. 2197 (2007); Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980); Sealed Plaintiffv.
Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).

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DISCUSSION
In order to maintain a § 1983 action, a plaintiff must allege that the conduct complained of
was "committed by a person acting under color of state law," and that it "deprived a person of

rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell
v. Callan, 13 F.3d 545,547 (2d Cir. 1994). "Section 1983 itself creates no substantive rights, [but]
provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808,
816,105 S. Ct. 2427 (1985)).

I.

Section 1983 claims against Private Defendants
The Supreme Court has held that "the under-color-of-state-law element of§ 1983 excludes

from its reach merely private conduct, no matter how discriminatory or wrongfuL" American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985 (1999) (internal quotation
marks omitted); cf. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288,295,
121 S. Ct. 924,930 (2001) ("[S]tate action maybe found if, though only if, there is such a 'close
nexus between the State and the challenged action' that seemingly private behavior 'may be fairly
treated as that of the State itself."') (quoting Jackson v. Metro. Edison Co., 419 U.S. 345,351,419

u.s. 345,351 (1974)).
The under-color-of-state-law requirement can be applied to private individuals in certain
limited circumstances, such as where the private individual is engaged in a "public function" or
performs conduct that is "fairly attributable to the state!' American Mfrs. Mut. Ins. Co., 526 U.S.
at 51, 119 S. Ct. at 986. However, the public function exception is narrow. The Supreme Court
has made clear that ''the relevant question is not simply whether a private group is serving a
'public function.' ... [T]he question is whether the function performed has been 'traditionally the
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exclusive prerogative of the State."' Rendell-Baker v. Kohn, 457 U.S. 830, 842, 102 S. Ct. 2764,
2772 (1982) (quoting Ja<kson, 419 U.S. at 353, 95 S. Ct. 499 at 455 (1974)). A private entity does
not become a state actor merely by performing under a state contract. Rendell-Baker. 457 U.S. at
841. Moreover, "[t]he mere fact that a business is subject to state regulation does not by itself
convert its action into that of the State for the purposes of the Fourteenth Amendment." Jackson,
419 U.S. at 350, 102 S. Ct. at 2771. "Rather, 'there must be su<h a dose nexus between the [state]
and the challenged action' that the state is •responsible' for the specific conduct of which the
plaintiff complains." Cranley v. Nat'llife Ins. Co. ofVt., 318 F.3d 105, 112 (2d Cir. 2003).
1

Renaissance is a private organization operated by SCO Family Services, and accordingly,
its staff members are not "state actors." Likewise, FJC Security Services ("'FJC"), a company that
provides security at Renaissance, is a private organization,2 and Rich Miller, an employee ofFJC,

is a private individual. Although courts have held that security officers performing certain
functions may cross the line from private action to state action, in those cases, the State has
delegated plenary power to private police officers. Payton v. Rush-Presbyterian-St. Luke's Med.
Ctr., 184 F.3d 623, 629 (7th Cir. 1999) ("[I]fthe state cloaks private parties with virtually the same
power as public police officers, and the private actors allegedly abuse that power to violate a
plaintiffs civil rights, that plaintiff's ability to claim relief under § 1983 should be unaffected.").
Plaintiff has not provided any facts which suggest that either Renaissance, SCO, or FJC perform a
public function sufficient to turn the organizations or their employees into state actors for purposes
of§ 1983 liability. Therefore, plaintiffs § 1983 claims against these entities and their employees

1

See http://sco.org/our-core-services/homeless-services (Last visited January 23, 2012).

2

"FJC is the largest privately owned and locally operated security services provider in the TriState area." See http://www.ficsecurity.com (Last visited January 23, 2012).

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are dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. §
1915(e)(2)(B).

11.

Section 1983 claims against Citv Defendants
Plaintiff names as defendants the City of New York and the New York City Department of

Homeless Services. First, city agencies are not generally suable entities. The New York City
Charter provides that "[a]II 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." N.Y.C. Admin. Code & Charter Ch. 16 § 396. See
Jenkins v. New York City Dep't ofHomeless Servs., 643 F.Supp.2d 507, 510 (S.D. N.Y. 2009)
(DHS is not a suable entity).
Furthermore, in order to sustain a claim for relief under 42 U.S.C. § 1983 against a
municipal defendant such as the City of New York, a plaintiff must show the existence of an
officially adopted policy or custom that caused injury, a direct causal connection between that
policy or custom, and the deprivation of a constitutional right. Monell v. Dep't of Social Servs ..
436 U.S. 658,694,98 S. Ct. 2018,2037 (1978); Amnesty America v. Town of West Hartford. 361
F.3d 113, 124-25 (2d Cir. 2004). "In the absence of an established written municipal policy, a
plaintiff must prove that a municipal practice was so persistent or widespread as to constitute a
custom or usage with the force of law, or that a practice or custom of subordinate employees was
so manifest as to imply the constructive acquiescence of senior policy-making officials." Prescott
v. Riker Island Med. Staf., No. 09 Civ. 255(SAS), 2011 WL 1435218 (S.D.N.Y. Apri!l2, 2011).
Here, plaintiff's complaint cannot reasonably be interpreted as alleging facts sufficient to
demonstrate that any alleged injury was caused by any policy or custom of the municipal
defendant, the City of New York. Plaintiff fails to allege the existence of a written policy.
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Furthermore, his claim that food was "misappropriated" by kitchen staff members, and that a
single employee "refus[ed] to check" to see who signed for a federal express envelope, do not
suggest a policy or custom as required by Monell. Accordingly, plaintiffs§ 1983 claims must be
dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. §
l915(e)(2)(B).

III.

Americans With Disabilities Act
In order to establish a violation under the ADA, the plaintiff must demonstrate that: (1) he

is a "qualified individual" with a disability; (2) that the defendants are subject to the ADA; and (3)
that plaintiff was denied the opportunity to participate in or benefit from defendants' services,
programs, or activities, or was otherwise discriminated against by defendants, by reason of
plaintiff's disabilities. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
Although plaintiff asserts that he suffers from a mental impairment, he fails to allege facts
to establish that he was denied the opportunity to participate in or benefit from defendants'
services, or was discriminated against by defendants, because of his disabilities. See Ruston v.
Town Bd. of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) ("Under Iqbal, factual allegations must
be sufficient to support necessary legal conclusions," and must '"plausibly suggest an entitlement
to relief'). Plaintiff's claim that due to his disability, he "could not cope with" the "stress" of not
receiving his mail on time is insufficient. Plaintiff's ADA claims fail as a result.
LEAVE TO AMEND
In light of plaintiffs prose status, this Court will grant plaintiff 20 days from the date of
this Order to revise his complaint to correct the deficiencies noted above. The amended complaint
must include a short, plain statement of facts sufficient to support a plausible claim of
discrimination and/or civil rights violations. Moreover, should plaintiff elect to file an amended
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complaint, he must name as proper defendants those individuals who have some personal
involvement in the actions he alleges in the amended complaint. To the best of his a.bility, plaintiff
must describe each individual and the role he or she played in the alleged deprivation of his rights.
In addition, he must set forth the factual allegations to support his claim against each named
defendant, the dates and locations of all relevant events, and the relief he is seeking.
The amended complaint must be captioned "Amended Complaint" and bear the docket
number 12 CV 5999 (BMC). No summons shall issue at this time and all further proceedings shall
be stayed until plaintiff has complied with this Order. If plaintiff fails to file an amended
complaint within 20 days, the instant action shall be dismissed without prejudice and judgment
shall enter. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438,444-45, 82 S. Ct 917,920-21 (1962).

SO ORDERED.

Dated: Brooklyn, New York
January 24, 2013

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