Siino v. NYC Human Resources Administration/Department of Social Services et al
Filing
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MEMORANDUM & ORDER [DISMISSING CASE]: Accordingly, this action is dismissed for failure to state a claim, pursuant to 28 U.S.C. § 1915(e) (2)(B)(ii). As the Court has dismissed all federal claims, the Court declines to exercise suppleme ntal 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 order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to close this case. SO ORDERED by Judge Margo K. Brodie, on 7/9/2015. C/mailed. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------CAROLYN JANE SIINO,
Plaintiff,
MEMORANDUM & ORDER
14-CV-7217 (MKB)
v.
CITY OF NEW YORK, NEW YORK
FOUNDATION FOR SENIOR CITIZENS,
GUARDIAN SERVICES, INC., and CROWN
HOUSE REALTY CO. LLC,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Carolyn Jane Siino, proceeding pro se, filed the above-captioned action against
Defendants, seeking relief pursuant to 42 U.S.C. § 1983 for various violations of her First,
Fourth and Fourteenth Amendment rights, relief pursuant to state common law, and injunctive or
declaratory relief against the City of New York. By Memorandum and Order dated April 21,
2015 (“April Memorandum and Order”), the Court granted Plaintiff’s request to proceed in
forma pauperis (“IFP”) and dismissed the Complaint. Plaintiff was granted thirty days to
replead her Complaint as specified in the order. On May 19, 2015, the Court received Plaintiff’s
Amended Complaint. For the reasons discussed below, Plaintiff’s Amended Complaint is
dismissed.
I.
Background
In its April Memorandum and Order, the Court found that Plaintiff failed to state a claim
against the City of New York for violations of her constitutional rights pursuant to 42 U.S.C.
§ 1983 because Plaintiff failed to allege that any of the actions taken against her were attributable
to an official policy or custom as required by Monell v. Dep’t of Soc. Servs., 435 U.S. 658, 694–
85 (1978). Siino v. N.Y.C. Human Res. Admin./Dep’t of Soc. Servs., No. 14-CV-7217, 2015 WL
1877654, at *5 (E.D.N.Y. Apr. 21, 2015). To the extent Plaintiff was attempting to bring § 1983
claims against the New York Foundation for Senior Citizens, Guardian Services Inc. (“Guardian
Services”) and Crown House Realty Co. LLC (“Crown House”), the Court dismissed those
claims for failure to allege either party was acting under color of state law. Id. at *6. The Court
determined that Plaintiff’s attempt to overturn the result of state court guardianship proceedings
was barred by the Rooker-Feldman doctrine, and that Plaintiff’s claims against New York City
agencies were dismissed because the agencies lack the capacity to be sued. Id. at *2–4. In light
of Plaintiff’s pro se status, the Court granted Plaintiff leave to amend her Complaint to correct
noted deficiencies as to New York City, Guardian Services and Crown House.
On May 19, 2015, the Court received Plaintiff’s Amended Complaint, which names the
City of New York, Guardian Services and Crown House as Defendants. Plaintiff substantially
repeats her initial allegations, set forth in greater detail in Siino, 2015 WL 1877654, at *1–2. In
sum, Plaintiff complains of the City of New York’s failure to provide her with housing
assistance, which resulted in her eviction from an apartment owned by Crown House and
subsequent homelessness and guardianship with Guardian services. Plaintiff argues that her
constitutional rights were violated because she was unlawfully categorized for the purposes of
housing benefits as “unemployed” and “childless,” she received no legal representation in her
proceedings, she was denied benefits such as free rent and relocation services and unlawfully
“steered” into guardianship proceedings rather than provided a new apartment, her property was
inappropriately removed from her apartment and not properly accounted for or relocated, she
was subjected to unwanted psychiatric examinations and hospitalizations, she was denied her
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computer which allowed her to practice her religion through her website, and some of her
property was destroyed.
II. Discussion
a.
Standard of review
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 is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained
in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that the Plaintiff’s
pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); Erickson v. Pardus,
551 U.S. 89, 94 (2007) (same); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even
after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”).
Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action, if the
Court determines 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.” 28
U.S.C. § 1915(e)(2)(B); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
b.
Plaintiff’s Amended Complaint
In the April Memorandum and Order, Plaintiff was granted leave to amend the Complaint
to provide facts that, fairly read, would state a claim for violation of her constitutional rights
against Defendants City of New York, Guardian Services and Crown House. Siino, 2015 WL
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1877654, at *7. Plaintiff’s Amended Complaint submits a lengthy series of factual allegations
and requests that the Court “determine what policies, practices, and customs are illegal and/or
unconstitutional . . . .” (Am. Compl. 2.) Toward the end of the Amended Complaint, Plaintiff
states that she is bringing claims pursuant to Section 1983 for violation of various constitutional
rights and claims for intentional infliction of severe emotional distress, negligent infliction of
severe emotional distress, larceny, conversion and negligence. (See id. at 30–38.) Plaintiff also
references various other claims, alleging that she was subject to abuse, exploitation and
“jeopardy.” Plaintiff seeks damages and injunctive or declaratory relief. Even under the less
stringent standards applicable to pro se plaintiffs, the Amended Complaint fails to state a claim
pursuant to 42 U.S.C. § 1983, and the Court declines to exercise supplemental jurisdiction over
Plaintiff’s remaining state law claims.
i.
Section 1983 claims
Plaintiff invokes several provisions of the United States Constitution and 42 U.S.C.
§ 1983, alleging that various agencies of the City of New York and Guardian Services as an
“agent” of New York City, (see Am. Compl. 8), violated Plaintiff’s constitutional rights to
“dignity, liberty, equal protection, due process, property, and constitutional [sic] search and
seizure of person and property,” freedom of speech, freedom of the press, “religious practice and
religious viewpoints,” and claims for intentional infliction of severe emotional distress, negligent
infliction of severe emotional distress, larceny, conversion and negligence. (See id. at 30–37.)
For substantially the same reasons discussed in the April Memorandum and Order, Plaintiff’s
Section 1983 claims are dismissed for failure to state a claim.
In order to sustain a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege (1)
that the challenged conduct was “committed by a person acting under color of state law,” and (2)
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that such conduct “deprived [the plaintiff] of rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010)
(quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 claims generally
must be brought against the individuals personally responsible for the alleged deprivation of
constitutional rights, not against the government entities or agencies where those individuals are
employed. A plaintiff seeking to recover money damages “must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Iqbal, 556 U.S. at 678. Furthermore, “the under-color-of-state-law element of § 1983 excludes
from its reach merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs.
Mt. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted).
1.
City of New York
As in the original Complaint, Plaintiff fails to allege that the vast majority of the
allegedly wrongful acts or omissions on the part of City employees involved in her eviction and
guardianship proceedings are attributable to an official policy or custom of the City of New
York. Monell, 436 U.S. at 694–95; see also Siino, 2015 WL 1877654, at *5. Instead, Plaintiff
sets forth allegations, most of which were presented in the original Complaint, illustrating her
dissatisfaction with New York City agencies and with Guardian Services for failing to prevent
her eviction and for not providing adequate housing assistance. (See Am. Compl. 30–35.) On
two occasions, Plaintiff points to specific policies which she deems objectionable. Plaintiff
alleges that the Department of Homeless Services has a policy not to grant rental assistance to
unmarried individuals, and that the City of New York has a policy to give preference to families
for homeless prevention services. (Am. Compl. 7, 34.) Plaintiff also alleges that the City of
New York had a policy, practice or custom to regard homeless people as “in need of mere
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transport” to a hospital or shelter. (Id. at 33, 35.) Beyond that, Plaintiff includes only general
allegations regarding city policies, alleging that the “policies, practices and customs” of city
agencies resulted in the alleged destruction of her property, “unjust institutionalization,” and
denial of housing subsidies, (id. at 12–14, 22), but fails to include anything more than a vague
reference to a “policy” or “practice,” and fails to identify any point at which an individual acting
pursuant to a city policy engaged in the challenged conduct.
As outlined in the April Memorandum and Order, to sustain a claim for relief pursuant to
Section 1983 against a municipal defendant, a plaintiff must show the existence of an official
policy or custom that caused injury and a direct causal connection between that policy or custom
and the deprivation of a constitutional right. Monell, 436 U.S. at 694–95 (“[A] local government
may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead,
it is when execution of a government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible under § 1983.”); see Torraco v. Port Auth. of N.Y. & N.J.,
615 F.3d 129, 140 (2d Cir. 2010) (“[T]o hold a city liable under § 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional
right.” (alteration in original) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007))).
Plaintiff’s vague and conclusory assertions that the City of New York has policies,
practices and customs which violated her constitutional rights are insufficient to meet the
pleadings standards required to establish liability under Monell. See Monell, 436 U.S. at 694–95;
see also Iqbal, 556 U.S. at 678. As to Plaintiff’s allegations regarding New York City’s alleged
policy of regarding homeless persons as “in need of mere transport,” Plaintiff has failed to allege
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any facts that would support the existence of such a policy. See Missel v. Cty. of Monroe, 351 F.
App’x 543, 545 (2d Cir. 2009) (“The allegations that [defendant] acted pursuant to a ‘policy,’
without any facts suggesting the policy’s existence, are plainly insufficient.”); see also Collins v.
West Hartford Police Dep’t, 324 F. App’x 137, 139 (2d Cir. 2009) (affirming dismissal of
Section 1983 claims because plaintiff “failed to identify a municipal policy or custom that caused
him injury”). Plaintiff also challenges her denial of rent subsidies and other benefits, alleging
that the City of New York denied her because she is unemployed and childless. (Am. Compl. 7,
34.) Plaintiff has presented nothing more than her own speculation as to the City’s policies, and
has presented no facts that would establish the existence of an official policy or a persistent and
widespread practice, alleging only that she personally has been denied certain benefits. See
Carter v. Rennessanice [sic] Men’s Shelter, No. 12-CV-5999, 2013 WL 308685, at *3 (E.D.N.Y.
Jan. 25, 2013) (dismissing Section 1983 claims against the City of New York for failing to allege
that City was acting pursuant to a formal policy, or to illustrate existence of policy through
factual allegations beyond what happened to defendant); Perri v. Bloomberg, No. 11-CV-2646,
2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (dismissing plaintiff’s claims against City of
New York, including Adult Protective services, for failure to state Monell claim by simply
reciting that the City violated plaintiff’s rights through its policies); Rose v. N.Y.C. Dep’t of
Human Res., No. 12-CV-1764, 2013 WL 69149, at *7 (S.D.N.Y. Jan. 4, 2013) (finding bare
allegation that New York City Department of Human Resources supervisors implemented policy
favoring persons of color with HIV/AIDS virus over white persons without the virus in awarding
food and rent subsidies “not sufficient to constitute a plausible factual allegation that a municipal
policy existed that deprived him of his rights”) report and recommendation adopted, No. 12-CV1764, 2013 WL 323995 (S.D.N.Y. Jan. 24, 2013); see also Jones v. City of New York, No. 12-
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CV-9144, 2013 WL 4028183, at *6 (S.D.N.Y. Aug. 8, 2013) (rejecting procedural due process
and substantive due process challenges to denial of relocation services and shelter benefits). The
Amended Complaint, therefore, is dismissed as to the City of New York for failure to state a
claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
2.
Private Entities
Similarly, Plaintiff fails to show that the New York Foundation and Crown House Realty
Co. LLC were state actors in order to be liable under 42 U.S.C. § 1983. Section 1983
“constrains only state conduct, not the ‘acts of private persons or entities.’” Hooda v.
Brookhaven Nat. Lab., 659 F.Supp.2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v.
Kohn, 457 U.S. 830, 837 (1982)). The conduct of a nominally private entity may be attributed to
the state, satisfying the state action requirement, 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 state,” 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 state,” (“the public function
test”).
Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (citing
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001)); see Sykes v.
Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013). Each of the three avenues requires a factspecific inquiry into the challenged conduct, and in order to find state action, a court must
determine that the specific actions of which Plaintiff complains can be fairly deemed that of the
state. See Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 265 (2d Cir.
2014) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 159 (1978)) (examining public
function test, noting that the function performed by the private entity must have historically been
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“an exclusive prerogative” of the state); Cooper v. U.S. Postal Serv., 577 F.3d 479, 491–92 (2d
Cir. 2009) (examining joint action test, noting that state action cannot be premised solely on
subjection to state regulation, funding, licensing or even state creation); Lynch v. Southampton
Animal Shelter Found. Inc., 971 F. Supp. 2d 340, 349–50 (E.D.N.Y. 2013) (examining
compulsion test).
A.
New York Foundation for Senior Citizens, Guardian
Services, Inc.
Plaintiff alleges that Guardian Services, a private organization, is an “agent” of New
York City because New York City agencies “pay [Guardian Services] for [Plaintiff],” and
“should be monitoring [Guardian Services], which submits reports to Queens Supreme Court and
likely to other City divisions.” (Am. Compl. 8.) She alleges that New York City “failed to
monitor” Guardian Services and implies that New York City is thus responsible for Guardian
Services’ actions. 1 (Id. at 31.)
Plaintiff has failed to allege that Guardian Services was acting under color of state law. It
is well established that acceptance of state funding alone is insufficient to show state action. See
Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012). Furthermore, Plaintiff has failed to show
that Guardian Services was acting under the compulsion of the state, in joint action with the
state, or in place of the state for a public function when it took any of the actions she challenges,
including the alleged failure to provide her with certain housing assistance, “heavy duty
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To the extent Plaintiff is attempting to state a failure to supervise claim against New
York City for Guardian Services’ conduct, Plaintiff has done nothing to show that the City was
“faced with a pattern of misconduct and [did] nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” See
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). As an initial matter, Plaintiff does not
allege that the Guardian Services employees are also employees of the City, and second, Plaintiff
does not allege that there is any pattern of conduct beyond the treatment she experienced.
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cleaning” of her apartment, and mishandling of her property. See Sybalski, 546 F.3d at 259
(noting that “care for the mentally disabled is neither traditionally nor exclusively reserved to the
state,” and thus is insufficient to establish state action under the public function test (citations
omitted)); Parent v. New York, 786 F. Supp. 2d 516, 538 (N.D.N.Y. 2011) (noting that a legal
guardian is not a state actor because he must exercise independent judgment on behalf of clients
and thus state is not responsible for the guardian’s conduct), aff’d, 485 F. App’x 500 (2d Cir.
2012); Arena v. Dep’t of Soc. Servs. of Nassau Cty., 216 F. Supp. 2d 146, 155 (E.D.N.Y. 2002)
(finding law guardian is not a state actor); Elmasri v. England, 111 F. Supp. 2d 212, 221
(E.D.N.Y. 2000) (noting that appointment by state court and payment from state funds is not
sufficient to render private actors state actors, and that legal guardians are not state actors
because they exercise independent professional judgment). Thus, Plaintiff has failed to state a
claim that Guardian Services was acting under color of state law when it took the actions of
which Plaintiff complains. Accordingly, her Section 1983 claim is dismissed as to Guardian
Services for failure to state a claim.
B.
Crown House Realty Co. LLC
Plaintiff fails to state a claim against Crown House because she has not adequately
alleged that Crown House, a private organization, acted under color of state law. Plaintiff alleges
that in 2011, she lived in an apartment owned by Crown House and commenced an action
against them relating to her housing conditions. (Am. Compl. 2.) However, Plaintiff specifically
states that she is “no longer pursuing any of this time-barred matter.” (Id. at 2.) Plaintiff alleges
that in 2012, she began failing to pay her rent, and in 2013 was subject to eviction from the
Crown House-owned apartment. (Id. at 2, 9.) Plaintiff’s claims are generally related to
Defendants’ alleged failure to provide Plaintiff with housing assistance or legal assistance and
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failure to take inventory of Plaintiff’s property, and to the alleged disappearance of some of
Plaintiff’s property following the eviction notice. (See id. at 35–38.) Plaintiff’s only allegation
against Crown House appears to be that, acting through its lawyer or other persons, it disposed of
some property left in her apartment following the eviction. 2 (See id. at 36–37.) Even reading the
Amended Complaint liberally, Plaintiff has failed to allege how Crown House’s actions can be
fairly attributed to the state on any theory of state action. See Young v. Halle Hous. Assocs.,
L.P., 152 F. Supp. 2d 355, 363–66 (S.D.N.Y. 2001) (finding that plaintiffs failed to demonstrate
how private landlord’s challenged policy is the product of state action, despite the fact that
landlord provided low-cost housing and received government funding). Therefore, Plaintiff’s
Section 1983 claim is dismissed as to Crown House for failure to state a claim.
III. Conclusion
Accordingly, this action is dismissed for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). As the Court has dismissed all federal claims, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s remaining state law claims. See 28 U.S.C. § 1367(c)(3)
(“District courts may decline to exercise supplemental jurisdiction over a claim if the district
court has dismissed all claims over which it has original jurisdiction.”). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good
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Plaintiff also contends that she could not return to the apartment due to a threat from
Crown House’s superintendent. (Am. Compl. 17.) She alleges that Crown House is responsible
for larceny, conversion and negligence with respect to the missing property. (Id. at 23.)
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faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v.
United States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: July 9, 2015
Brooklyn, New York
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