Rose v. City of New York et al

Filing 4

MEMORANDUM & ORDER: Plaintiff's request to proceed in forma pauperis is GRANTED. However, his claims against the City and DHRA are DISMISSED. So Ordered by Judge Nicholas G. Garaufis on 7/29/2013. (c/m to pro se; fwd'd for jgm) (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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WAYNE ROSE,

MEMORANDUM & ORDER
Plaintiff,

13-CV-1220 (NGG) (LB)

-againstCITY OF NEW YORK and DEPARTMENT OF
HUMAN RESOURCE ADMINISTRATION,
HASA DEPARTMENT,
Defendants.
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NICHOLAS G. GARAUFIS, United States District Judge.
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Prose Plaintiff Wayne Rose brings this action under the federal Freedom of Information
Act, 5 U.S.C. § 552, et seq. ("FOIA"), seeking injunctive relief, $10 million in damages, and
$5,000 in legal fees against Defendants City ofNew York (the "City") and the Department of
Human Resource Administration, HIVI AIDS Services Administration Department ("DHRA").
(See Compl. (Dkt. 1).) Plaintiff also moves to proceed in forma pauperis under 28 U.S.C.

§ 1915. (Pl. Mot. (Dkt. 2).) Plaintiffs request to proceed in forma pauperis is GRANTED.
However, for the reasons discussed below, his claims against the City and DHRA are
DISMISSED.

The court notes that Plaintiff has a robust history of litigation in this court and elsewhere. See. e.g .. Rose v.
Lebowitz, No. 13-CV-2650 (NGG), 2013 WL 2255532 (May 22, 2013, E.D.N.Y.) (dismissing complaint against
Justice Jeffrey Lebowitz of the Queens County Supreme Court); Rose v. New York City Dep't of Human Res., No.
12-CV-1764 (GBD) 2013 WL 323995 (Jan. 24, 2013, S.D.N.Y.) (dismissing claim that Plaintiff was denied certain
benefits because he is Caucasion); Rose v. Goldman, No. 02-CV-5370 (NGG), 2011 WL 1130214 (Mar. 24, 201 I,
E.D.N.Y) (finding against Plaintiff on summary judgment in favor of numerous defendants and explaining:
"Plaintiff's suit has now spanned two states, three judicial districts, and almost nine years of litigation. Today, it
finally comes to an end.").

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I.

BACKGROUND
Plaintiff brings this action under FOIA, alleging that he has fruitlessly demanded copies

of all documents relating to him that are maintained by Defendants City and DHRA. (Compl.
~ 9.) He further alleges that Defendants have "placed an inconvenience upon [him] to obtain the

records ... to ensure that the plaintiff cannot have access to the documents sought." (Id. ~ 13.)
Plaintiff states that Defendants have refused his requests "in retaliation against [him] for the
filing of complaints or otherwise demanding his rights as he is entitled and in the reporting of
misconduct of caseworkers." (Id. ~ 21.) Plaintiff seeks injunctive relief, $1 O million in damages,
and $5,000 for legal fees.

II.

STANDARD OF REVIEW
Prose filings are construed liberally and are interpreted to raise the strongest arguments

they suggest. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). This is especially true
when such pleadings allege civil rights violations. Sealed Plaintiffv. Sealed Defendant #1, 537
F.3d 185, 191 (2d Cir. 2008). At the pleadings stage, a court assumes the truth of"all wellpleaded, nonconclusory factual allegations" in a complaint. Kiobel v. Royal Dutch Petroleum
Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A
pro se complaint should not be dismissed 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." Gomez
v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam) (quotation marks and
citation omitted).
Nevertheless, under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss an action
filed by a plaintiff proceeding in forma pauperis where it "(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." Although courts must read prose complaints with "special
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solicitude" and interpret them to raise the "strongest arguments that they suggest," Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), a complaint must plead "enough facts
to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft, 556 U.S. at 678 (2009). While "~etailed factual allegations" are not
required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555). Similarly, a
complaint is insufficient to state a claim "if it tenders 'naked assertion[ s]' devoid of 'further
factual enhancement."' Id. (quoting Twombly, 550 U.S. at 557).

III.

DISCUSSION
Plaintiff purports to bring this action pursuant to FOIA. However, his attempt to use

FOIA to obtain records from the City and DHRA-and to seek relief for their alleged failures to
appropriately respond to his requests-is unavailing. "[I]t is beyond question that FOIA applies
only to federal ... agencies." Grand Cent. P'ship. Inc. v. Cuomo, 166 F.3d 473, 484 (2d Cir.
1999) (collecting cases). Section 551(1) of the Administrative Procedure Act ("APA"), of which
FOIA is a subsection, defines "agency" as "each authority of the Government of the United
States," subject to limited exceptions not relevant here, and§ 552(f) of FOIA incorporates by
reference the definition of"agency" contained in section 551(1) of the APA. See 5 U.S.C.
§ 552(f). Indeed, numerous courts in this circuit explicitly have found that FOIA does not apply
to municipal agencies. See Esseily v. Giuliani, No. OO-CV-5271 (BSG), 2000 WL 1154313, at
*1 (Aug. 14, 2000, S.D.N.Y.) (collecting cases). Accordingly, the court may not compel the
City, or any of its agencies or departments, to comply with Plaintiff's FOIA request.

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Nor could the court possibly grant relief to Plaintiff pursuant to any claimed failure of the
City and DHRA to comply with a statute that does not apply to them. Even creatively construing
Plaintiffs Complaint at the outer bounds of the court's imagination to allege civil rights
violations under 42 U.S.C. § 1983, no such claim can here survive. In order to maintain a claim
under §1983, Plaintiff must allege that: (1) "the conduct complained of [was] committed by a
person acting under color of state law," and (2) "the conduct complained of ... deprived
[Plaintiff] 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).
DHRA is not a proper party to a § 1983 action. Courts consistently have held that
agencies of the City of New York cannot be sued independently under§ 1983. See, e.g., Bailey
v. New York City Police Dep't 910 F. Supp. 116, 117 (E.D.N.Y. 1996); Signorile v. City of
New York, 887 F. Supp. 403, 421-22 (E.D.N.Y. 1995) ("As an agency of the City, the NYPD
can sue and be sued only in the name of the City."); see also Lauro v. Charles, 219 F.3d 202, 205
n.2 (2d Cir. 2000). Accordingly, Plaintiffs claim against DHRA, even generously construed as
a claim under § 1983 rather than pursuant to FOIA as Plaintiff asserts, is dismissed for failure to
state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), l 915A.
Plaintiff also names the City of New York as a defendant. In order to sustain a § 1983
claim 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 and a direct causal
connection between that policy or custom and the deprivation of a constitutional right. Bd. of
Cnty. Comm'rs of Bryan Cnty .. Oki. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. New
York City Dep't of Soc. Servs., 436 U.S. 658 (1978)). Even proof ofa single incident of
unconstitutional activity is not sufficient to impose liability on a municipality unless proof of the

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incident includes proof that it was caused by an existing, unconstitutional municipal policy that
can be attributed to a municipal policymaker. City of Oklahoma City v. Tuttle, 471 U.S. 808,
823-24 (1985). Here, Plaintiff fails to even allege-and nothing in his Complaint suggests-that
any of the allegedly wrongful acts were attributable to a municipal policy or custom.
Accordingly, there does not appear to be any basis whatsoever in Plaintiff's allegations for suing
the City ofNew York-and even if any such basis existed, Plaintiff fails to plead it. Plaintiff's
claim against the City of New York as construed pursuant to § 1983 therefore is dismissed for
failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A.
IV.

CONCLUSION

Plaintiff's Complaint is DISMISSED. 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 the purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
SO ORDERED.

s/Nicholas G. Garaufis

~ICHOLAS 'G.' olliu~

Dated: Brooklyn, New York
July~, 2013

United States District Judge

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