Murray v. New York State Division of Parole et al

Filing 71

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the annexed Memorandum and Order, the court adopts in its entirety Judge Bloom's well-reasoned R&R. Accordingly, the complaint is dismissed. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purposes of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).The Clerk of Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se plaintiff and note service on the docket within two business days of entering this Memorandum and Order. Th e Clerk of Court is further respectfully requested to enter judgment in favor of defendants, to serve the pro se plaintiff with a copy of the judgment and the appeals packet, and to close this case. Ordered by Judge Kiyo A. Matsumoto on 9/30/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
Dexter K. Murray,
ORDER ADOPTING
REPORT AND
RECOMMENDATION

Plaintiff,
-against-

13-cv-7090 (KAM)(LB)
NYC Dept. of Correction, et al.,
Defendant.
--------------------------------------X
MATSUMOTO, United States District Judge:
Presently
Recommendation
(“R&R”),

of

filed

on

before

the

United

States

August

18,

court

is

Magistrate

2016.

(ECF

the

Report

Judge

Lois

No.

79).

and
Bloom

The

R&R

recommends that defendants’ motions to dismiss be GRANTED. (R&R at
26).

For the reasons set forth below and upon de novo review of

the record, the Court ADOPTS the Report and Recommendation in its
entirety and the court further finds that plaintiff has failed to
state a claim pursuant to 42 U.S.C § 1981 and dismisses the
Complaint.
Background
On
(“plaintiff”
multiple

December
or

public

“Mr.

10,

2013,

Murray”),

agencies,

plaintiff

commenced

officers,

and

Dexter

this

K.

action

private

Murray
against

entities

and

individuals (collectively, “defendants”) pursuant to 42 U.S.C. §§
1983 and 1985(3).

(Complaint, ECF No. 1).

The court sua sponte

dismissed all of plaintiff’s damages claims against the New York
State Department of Corrections and Community Supervision (which
now combines and includes the functions of both the former New
York State Division of Parole and New York State Department of
Corrections), New York State Office of Child and Family Services,
the Kings County, Albany County, and Wyoming County divisions of
the New York Courts, and the Kings County District Attorney’s
Office (collectively “New York State defendants”) as barred under
the

Eleventh

Amendment

of

the

United

States

Constitution.

(Memorandum and Order, ECF No. 4).
The defendants moved to dismiss all the remaining claims
in the Complaint on October 13, 2015.
49-56).

(Motions to Dismiss, ECF Nos.

On April 8, 2016, the court referred defendants’ motions

to dismiss to Judge Bloom for report and recommendation.
dated

April

8,

2016).

After

plaintiff

failed

to

(Order,

submit

any

oppositions to the defendants’ motions by September 18, 2015 as
ordered by the court, Judge Bloom, sua sponte, issued an order on
April 19, 2016, allowing plaintiff one “final opportunity” to file
his opposition to the motions to dismiss by May 20, 2016, or the
motions would be considered unopposed.
Order, ECF No. 60).

(Order dated June 24, 2015;

Plaintiff, by letter dated May 13, 2016,

requested an extension of time to respond to the motions.

2

(Letter,

ECF No. 63).

On May 24, 2016, Judge Bloom granted plaintiff’s

request and ordered plaintiff to file his opposition papers by June
24, 2016.

(Order, ECF No. 65).

Judge Bloom also warned plaintiff

that no further extensions would be granted and that if he failed
to file his opposition to defendants’ motions, the motions would be
considered unopposed.

(Id.).

Plaintiff never opposed the motions

to dismiss, and on August 18, 2016, Judge Bloom issued an R&R
recommending that the court grant defendants’ motions to dismiss
because plaintiff failed to state a claim upon which relief may be
granted.

(R&R, ECF No. 69 at 26).
The R&R notified the parties that the deadline to file

objections was within fourteen days of service of the R&R. (Id.).
Plaintiff objected to the R&R by a letter postmarked September 3,
2016.

(Plaintiff’s

Objections

(“Objs.”) ECF No. 70).

to

R&R,

postmarked

9/03/2016,

Defendants did not object to the R&R.
Discussion

For the reasons stated herein, the Court has conducted
a de novo review of the record, and ADOPTS the detailed, and
soundly reasoned R&R in its entirety and also finds that plaintiff
has failed to state a plausible claim pursuant to 42 U.S.C § 1981.
I.

Standard of Review
A district court reviews those portions of a Report and

3

Recommendation to which a party has timely objected under a de novo
standard of review and “may accept, reject, or modify, in whole or
in part, the findings or recommendations . . . .”
§ 636(b)(1)(C).

Where

no

objections

to

the

28 U.S.C.
Report

and

Recommendation have been filed, however, the district court “need
only satisfy itself that that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985)).
sections

of

a

“The district court is permitted to adopt those

magistrate

judge’s

report

to

which

no

specific

objection is made, so long as those sections are not facially
erroneous.”

Sasmor v. Powell, No. 11-CIV-4645 (KAM) (JO), 2015 WL

5458020, at *2 (E.D.N.Y. Sept. 17, 2015) (citation and internal
quotation marks omitted).
II.

Plaintiff’s Objections to the R&R
The court presumes familiarity with the underlying facts

and procedural history as set forth in greater detail in Judge
Bloom’s August 18, 2016 Report and Recommendation.

(ECF No. 69).

As an initial matter, the court notes that plaintiff’s objections
are conclusory and general.

Although a pro se party’s objections

are “generally accorded leniency” and should be construed “to raise
the strongest arguments that they suggest,” Milano v. Astrue, No.

4

05–6527(KMW)(DCF), 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008),
a pro se party’s objections “must be specific and clearly aimed at
particular findings in the magistrate’s proposal, such that no party
be allowed a second bite at the apple by simply relitigating a prior
argument.”

Pinkney v. Progressive Home Health Servs., No. 06-CIV-

5023(LTS)(JCF), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008),
aff’d, 367 F. App’x 210 (2d Cir. 2010) (internal quotations marks
omitted).

District courts often apply a clear error standard of

review where “the objecting party makes only conclusory or general
objections, or simply reiterates the original arguments.”

Zaretsky

v. Maxi-Aids, Inc., No. 10-CV-3771 (SJF)(ETB), 2012 WL 2345181, at
*1 (E.D.N.Y. June 18, 2012) (internal quotation marks omitted);
Ortiz

v.

Barkley,

558

F.

Supp.

2d

444,

451

(S.D.N.Y.

2008)

(“Reviewing courts should review a report and recommendation for
clear error where objections are merely perfunctory responses,
argued in an attempt to engage the district court in a rehashing of
the same arguments set forth in the original petition.” (internal
quotation marks omitted)); Mario v. P & C Food Mkts., Inc., 313 F.3d
758, 766 (2d Cir. 2002) (“Merely referring the court to previously
filed

papers

or

arguments

does

not

constitute

an

adequate

objection.”); see also Soley v. Wasserman, 823 F. Supp. 2d 221, 228
(S.D.N.Y. 2011).

5

Despite plaintiff’s failure to oppose the defendants’
motions to dismiss and his conclusory objections to the R&R, the
court, nonetheless, conducts a de novo review of Judge Bloom’s
Report and Recommendation.

Upon de novo review of Judge Bloom’s

R&R the court agrees with, and adopts, Judge Bloom’s well-reasoned
analysis in its entirety.

Further, the court finds that plaintiff

has failed to state a plausible claim pursuant to 42 U.S.C. § 1981.
The court addresses in turn each of plaintiff’s objections.
A. Sovereign Immunity Objections
Plaintiff’s primary objection is that New York State
“waived its immunity from suit” and therefore the defendants “acting
under the color of state law,” which plaintiff lists as including
parole officers, Administration for Children’s Services (“ACS”)
officers, the City of New York Police Department (“NYPD”) police
officers, Human Resources Administration (“HRA”) agents and Kings
County prosecutors, are not immune from suit. 1

(Objs. at ¶¶ 2-5).

As noted above, in its February 20, 2015 Order, this court ruled
that the Eleventh Amendment barred suit against the New York State
defendants which included New York State Department of Corrections
and Community Supervision (which now combines and includes the

1

Plaintiff mistakenly classifies ACS officers, NYPD officers and HRA agents
as state officials rather than officials of the City of New York’s agencies,
or departments.

6

functions of both the former New York State Division of Parole and
New York State Department of Corrections), New York State Office of
Child and Family Services, the Kings County, Albany County, and
Wyoming County divisions of the New York Courts, and the Kings
County District Attorney’s Office.
already

decided

this

issue,

the

(ECF No. 4).
court

As the court

construes

plaintiff’s

objection as a motion for reconsideration despite its untimeliness.
See LOCAL RULES 6.3

OF THE

EASTERN DISTRICTS

NEW YORK (Motions for reconsideration shall be

OF

UNITED STATES DISTRICT COURTS

FOR THE

SOUTHERN

AND

served within fourteen days after entry of the court’s order.).
In the Eastern District of New York, Local Rule 6.3
requires
concisely

a

party

the

moving

matters

or

for

reconsideration

controlling

believes the Court has overlooked.”

to

decisions

“set[]
which

forth

counsel

A motion for reconsideration

“must demonstrate controlling law or factual matters put before the
court on the underlying motion that the movant believes the court
overlooked and that might reasonably be expected to alter the
court’s decision.”

Mallet v. Miller, 438 F. Supp. 2d 276, 277

(S.D.N.Y. 2006) (citing Schrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995); In re Houbigant, Inc., 914 F. Supp. 997, 1001
(S.D.N.Y.
failure

1996)
to

(citing

oppose

the

cases).
defendants’

7

Notwithstanding
motions

plaintiff’s

despite

repeated

extensions, plaintiff cites no controlling law or factual matters
the court overlooked that might reasonably be expected to alter the
outcome

of

defendants.

the

February

20,

2015

Order

dismissing

the

state

Instead, plaintiff in a conclusory manner states that

New York State waived its sovereign immunity and therefore the New
York State and the City of New York officials are properly subject
to suit.

(Objs. at ¶ 2).

Having reconsidered the issue, the court

affirms its prior ruling and finds that 42 U.S.C. § 1983 does not
abrogate New York State’s Eleventh Amendment immunity and the New
York State defendants were properly dismissed. See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 69 (1989) (“We find nothing
substantial in the legislative history that leads us to believe that
Congress intended that the word ‘person’ in § 1983 included the
States of the Union.”).

Further, upon de novo review of the R&R,

the court agrees with Judge Bloom’s sound reasoning dismissing the
claims against the remaining defendants, 2 including the City of New
York defendants named in plaintiff’s objections, and adopts the R&R

2

Judge Bloom also dismissed claims against the parole officer defendants in
their official capacities, defendants Petgrave, Camacho, and Moore, on
Eleventh Amendment grounds, in an abundance of caution, because they were not
specifically named in the court’s February 20, 2015 Order. (R&R at 14-15).
The court affirms Judge Bloom’s finding that “to the extent plaintiff is
suing the state parole officers [] in their official capacity, the claims
must be dismissed with prejudice because defendants are entitled to Eleventh
Amendment immunity.” (R&R at 15 (quoting McClinton v. Henderson, No. 13-CV3335 (JFB)(GRB), 2014 WL 2048389, at *4 (E.D.N.Y. May 19, 2014))).

8

in its entirety.
B. Plaintiff’s 42 U.S.C. § 1981 Claims
Plaintiff, for the first time in his objections, states
that he has viable claims under 42 U.S.C. § 1981.

(Objs. at ¶ 4).

The court need not consider this objection, particularly because
plaintiff did not cite this statute in the Complaint.

But, even if

he had, and even construing the Complaint liberally in light of
plaintiff’s pro se status, plaintiff has failed to state a plausible
§ 1981 claim.

To state a § 1981 claim a party must plead facts

showing “(1) the plaintiff is a member of a racial minority; (2) an
intent to discriminate on the basis of race by the defendant; and
(3) the discrimination concerned one or more of the activities
enumerated in the statute.” Jones v. J.C. Penney’s Dep’t Stores,
Inc., No. 03-CV-920A, 2007 WL 1577758, at *18 (W.D.N.Y. May 31,
2007), aff’d sub nom. Jones v. J.C. Penny’s Dep’t Stores Inc., 317
F. App’x 71 (2d Cir. 2009) (citations omitted).

To allege racial

discrimination depriving a plaintiff of “the full and equal benefit”
of a law or proceeding, “plaintiffs must meet the same pleading
standard for . . . § 1981 claims as for . . . § 1983 claims under
the Equal Protection Clause[.]”

Brown v. City of Oneonta, New York,

221 F.3d 329, 339 (2d Cir. 2000).

A plaintiff must therefore allege

“that the defendant discriminated against him on the basis of race,

9

. . . that that discrimination was intentional, . . . and that the
discrimination was a ‘substantial’ or ‘motivating factor’ for the
defendant’s actions.” Tolbert v. Queens College, 242 F.3d 58, 69
(2d Cir. 2001) (internal citations omitted).
The Second Circuit has held that § 1981 equal benefit
claims can be brought against private parties because no state
action is required.

Phillip v. University of Rochester, 316 F.3d

291, 294 (2d Cir. 2003) (citing 1981(c) (“The rights protected by
this section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.”)). “A claim
seeking personal liability under section 1981 must be predicated on
the actor’s personal involvement.”

Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000).

“A violation of

§ 1981’s equal benefit clause, however, requires that at least some
of Defendants’ challenged actions constituted a tort.” Cowart v.
McGinnis, No. 02-CV-817F, 2007 WL 4030000, at *9 (W.D.N.Y. Nov. 15,
2007) (citing Frierson-Harris v. Hough, No. 05 Civ. 3077(DLC), 2006
WL 298658, * 7 (S.D.N.Y. Feb. 7, 2006) (holding plaintiff failed to
state a claim for racial discrimination under § 1981’s equal benefit
clause where plaintiff alleged no facts which, if true, would
constitute a violation of any other laws)).
Here, plaintiff alleges that defendants Narco Freedom,

10

Miracle House, “Dennis & Medical,” Joseph Gentile and Charlie Wise
discriminated against him and caused him to be moved from Narco
Freedom to Miracle House, a transitional housing facility. Although
plaintiff claims that the Caucasian house manager objected to his
presence

at

Narco

Freedom

because

he

is

African

American

and

identified as a “Five Percenter,” plaintiff fails to plead facts
showing that his race was the “the substantial or motivating factor”
in defendants’ alleged decision to move plaintiff.
¶ 25); Tolbert, 242 F.3d at 69.

(Complaint at

Plaintiff’s own allegations

establish a non-discriminatory purpose for his move from Narco
Freedom

to

Miracle

House:

(Complaint at ¶ 25).
relocated

him

environment.

to

Id.

his

“completion

of

Narco

Freedom.”

Plaintiff also alleges that Miracle House

Bellevue

Men’s

Shelter,

a

less

pleasant

These allegations are insufficient to infer that

plaintiff’s race was a “motivating factor” for his relocations.
Furthermore, plaintiff has not established that the moves themselves
amount to discriminatory conduct.

Plaintiff’s allegations do not

give rise to an inference of discrimination strong enough to nudge
his

claims

“across

the

line

from

conceivable

Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).
has failed to state a plausible § 1981.
5:12–CV–00166,

2013

WL

1386290,

11

at

to

plausible.”

Therefore, plaintiff

See Burwell v. Peyton, No.
*6

(D.

Vt.

Apr.

4,

2013)

(dismissing § 1981 case where complaint lacked factual allegations
that made plaintiff’s race a motivating factor in the complained of
conduct). 3
private

None of plaintiff’s other allegations against any of the

actor

defendants

sound

of

discrimination

plaintiff’s membership in a protected class.

based

on

Therefore, plaintiff

has not stated a plausible claim under § 1981 and his objection
pursuant to § 1981 is denied.
C. Plaintiff’s Request for Counsel
In his objections, plaintiff also requests that the
court appoint counsel because he suffers from various mental illness
and

his

mental

health

is

“deteriorating.”

(Objs.

at

¶

3-4).

Plaintiff claims he has difficulty concentrating and he is unable
to “advocate on his own behalf” and “marshal a defense against the
defendants.”

(Objs. at ¶ 3).

Although the court recognizes that

plaintiff has alleged that he suffers from serious mental health
issues that may affect his ability to represent himself, the court
denies plaintiff’s request for the appointment of counsel because
there is no right to counsel in a civil case.

See Martin-Trigona

3
The court has also evaluated whether plaintiff has alleged that the private
actors deprived him of his “right to make and enforce contracts” pursuant to
§ 1981. Tower Properties LLC v. Vill. of Highland Falls, No. 14-CV-04502
NSR, 2015 WL 4124499, at *14 (S.D.N.Y. July 7, 2015). The court finds that
the Complaint has no allegations that support a plausible claim pursuant to
the right to contract under § 1981.

12

v. Lavien, 737 F.2d 1254, 1260 (2d Cir. 1984).

The court cannot

compel an attorney to represent a litigant in a civil case without
a fee.

Although the court may request a volunteer attorney for a

particular case, there must be a threshold showing that plaintiff’s
claims are likely to be of substance.

As Judge Bloom’s well-

reasoned R&R makes clear, plaintiff’s claims fail to state a claim
upon which relief may be granted. Accordingly, plaintiff has failed
to make the threshold showing.
D. Request for Leave to Amend Complaint
Plaintiff also seeks leave to amend the Complaint.
at ¶ 4).

(Obj.

In light of the pleading deficiencies in the complaint,

the court has considered whether plaintiff should be given an
opportunity to re-plead.

Leave to amend should be freely granted

when justice so requires.

Fed. R. Civ. P. 15(a)(2). “This relaxed

standard

applies

with

particular

force

to

pro

se

litigants.”

Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999).

The Second

Circuit has emphasized that a “court 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) (citations and internal quotation marks omitted); see
also

Chavis

v.

Chappius,

618

F.3d

13

162,

170

(2d

Cir.

2010).

Nevertheless, “[l]eave to amend, though liberally granted, may
properly be denied for: ‘undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of amendment,
etc.’”

Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.

2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962)); see also Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir. 2008).

Here, plaintiff delayed

the litigation by failing to oppose the motions to dismiss despite
the multiple extensions he received.

Further, as Judge Bloom noted

in the R&R plaintiff’s claims arise primarily from complaints about
private individuals or state officials who are immune from suit.
Thus, plaintiff’s pleading deficiencies are substantive in nature
and, as such, cannot be remedied by amendment.
court

declines

to

grant

plaintiff

complaint.

14

leave

to

Accordingly, the
file

an

amended

Conclusion
Upon a de novo review, the court adopts in its entirety
Judge Bloom’s well-reasoned R&R and finds that plaintiff fails to
state a claim upon which relief may be granted.

In addition to

all of the reasons for dismissal stated in the R&R, the court also
finds that plaintiff has not stated a plausible claim under § 1981.
Accordingly, for the reasons set forth above, the complaint is
dismissed in its entirety, with prejudice to the federal claims
therein because the court finds that leave to amend would be
futile.

Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.

2008); Mercado v. Quantum Servicing Corp., No. 15–CV–1500, 2015 WL
1969028, at *5 (E.D.N.Y. Apr. 29, 2015).

The court declines to

exercise jurisdiction over plaintiff’s remaining state-law claims.
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this Memorandum and Order would not be taken in good
faith and, therefore, in forma pauperis status is denied for
purposes of an appeal.

Coppedge v. United States, 369 U.S. 438,

444–45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of Court is respectfully requested to serve a
copy of this Memorandum and Order on the pro se plaintiff and note
service on the docket within two business days of entering this
Memorandum and Order.

The Clerk of Court is further respectfully

15

requested to enter judgment in favor of defendants, to serve the
pro se plaintiff with a copy of the judgment and the appeals
packet, and to close this case.
SO ORDERED.
Dated:

September 30, 2016
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge

16