Nguyen et al v. Milliken et al
MEMORANDUM & ORDER DISMISSING CASE: Accordingly, Mr. Nguyen's 6 motion to vacate the initial dismissal is denied, and the 12 Amended Complaint is dismissed as to Mr. Nguyen. The 12 Amended Complaint fails to cure the deficiencies in the Complaint, and the action is dismissed in its entirety. 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. The Clerk of Court is directed to close this case. SO ORDERED by Judge Margo K. Brodie, on 8/18/2015. C/mailed to pro se Plaintiffs. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------TIFFANY NGUYEN and THOMAS NGUYEN,
MEMORANDUM & ORDER
JAMES B. MILLIKEN, CITY OF NEW
YORK/CITY UNIVERSITY OF NEW YORK,
JENNIFER RAAB, HUNTER COLLEGE,
HOLGER CARRILLO, and NEW YORK CITY
DEPARTMENT OF EDUCTION,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Tiffany Nguyen (“Ms. Nguyen”) and Thomas Nguyen (“Mr. Nguyen”),
appearing pro se, filed the above-captioned action on January 30, 2015, alleging violations of
Ms. Nguyen’s First, Fifth, and Fourteenth Amendment rights and seeking relief pursuant to 42
U.S.C. §§ 1983 and 1985(3). (Compl. 1–2.) By Memorandum and Order dated April 21, 2015,
the Court granted Plaintiffs’ applications to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915, and dismissed the Complaint as to Mr. Nguyen for lack of standing and to Ms. Nguyen
for failure to state a claim. Ms. Nguyen was granted leave to file an amended complaint within
thirty days, and sought and was granted three extensions of time to file her amended complaint.
On June 22, 2015, the Court granted the third request for an extension of time, warning Ms.
Nguyen that no further extensions would be granted, and that failure to file an amended
complaint on or before July 3, 2015 would result in dismissal of the action. (Order Dated June
22, 2015.) Plaintiffs filed an Amended Complaint on July 7, 2015, adding new Defendants and
claims for breach of contract and for violations of the United States Criminal Code, the Law of
Nations and Universal Declaration of Human Rights. (Am. Compl. 1–4, Docket Entry No. 12.)
For the following reasons, the untimely Amended Complaint is dismissed pursuant to 28 U.S.C.
Plaintiffs’ initial Complaint1 alleged, in sum, that Carrillo, a part-time instructor at
Hunter College, “committed fraud” by giving Ms. Nguyen a grade of “B” in “Stat,” as Plaintiffs
believed that she was entitled to a grade of “at least A- (A-minus).” (Compl. 2, 5.)
Approximately one month after the grade was posted, Ms. Nguyen was confronted by Hunter
College Associate Director of Student Conduct Colleen Barry and two campus security officers,
who took unidentified property from Ms. Nguyen and threatened to arrest her. (Id. at 2.) Ms.
Nguyen attached to the Complaint a Criminal Trespass Warning from the Hunter College
Department of Public Safety. (Id. at 4.) By Memorandum and Order dated April 21, 2015, the
Court dismissed the complaint as to Mr. Nguyen for failing to demonstrate standing to sue for
the harms alleged, and as to Ms. Nguyen for failure to state a claim against any of the
Defendants. The Court granted Ms. Nguyen leave to file an amended complaint.
On May 13, 2015, Plaintiffs filed a “Motion Letter to Vacate Dismissal for Mr. Nguyen
Lack of Standing.” (Docket Entry No. 6.) The Motion included new allegations, not raised in
the initial Complaint, about Mr. Nguyen’s previous conflict with Carrillo related to Mr.
Nguyen’s employment in the New York City Department of Education beginning “[a]bout 14
For the purposes of this Memorandum and Order, the Court’s references to the
Complaint or Amended Complaint include both the pleading itself and all documents attached
thereto. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include
any written instrument attached to it as an exhibit.” (citing Fed. R. Civ. P. 10(c))). For ease of
reference, the Court refers to the electronic case filing (ECF) page numbers.
years ago in the first week of September 2001.” (Id. at 1.) Mr. Nguyen alleges that he
confronted Carrillo about opening “the ‘box’ the night before, and drill[ing] ‘their kids’ in the
early morning of the exam(s).” (Id.) He alleges that, since 2002, Carrillo and others came into
his classroom “non-stop.” (Id.) Mr. Nguyen states that he wants to catch Carrillo in “illegal
act(s)” and asserts that he “had strong and firm standing then-and-now against Carrillo et
al[.] . . . .” (Id. at 2.)
On May 28, 2015, Mr. Nguyen and Ms. Nguyen filed a “Motion to Request Special
Restraining Order,” to “stop Hunter/CUNY’s continuous abusing of power against Ms. Nguyen’s
SSN.” (Docket Entry No. 8 at 1.) The Motion included a printed version of the New York State
Higher Education Services Corporation’s website, several emails and a copy of an email in
which Ms. Nguyen was informed that her request to enroll for courses at Kingsborough
Community College was rejected because “[a] negative Service Indicator has been placed on
your record by the Bursars Office.” (Id. at 2–5.) The Court denied the request for a special
restraining order, as Plaintiff had failed to show a basis for the motion.
While filing these motions, Plaintiffs filed three requests for an extension of time to file
an amended complaint, two of which contained multiple attachments and all of which referred to
other cases that Mr. Nguyen has filed in this Court. (Docket Entry Nos. 7, 10, 11.) The Court
granted all three requests for extensions and, on June 22, 2015, warned Plaintiffs that failure to
file an amended complaint by July 3, 2015 would result in dismissal of the action. (Order dated
June 22, 2015.) Plaintiffs filed the Amended Complaint on July 7, 2015. (Am. Compl. Docket
Entry No. 12.) In an attached “Letter of Apology,” Plaintiffs assert that they submitted the
papers late because of the Independence Day holiday and Mr. Nguyen’s “Health-scare.” (Am.
Compl. Ex. 1) The courthouse was closed on July 3, 2015, in observance of the July 4 holiday;
accordingly, the last day for submission of the amended complaint was on the next business day,
July 6, 2015. See Fed. R. Civ. P. 6(a). Plaintiffs’ Amended Complaint was not filed until 5:30
AM on July 7, 2015. (See Am. Compl. 1.)
Plaintiffs appear to bring this action against Defendants James B. Milliken, Chancellor of
the City University of New York; the City of New York; City University of New York; Jennifer
Raab, President of Hunter College; Hunter College; Holger Carrillo; and the New York City
Department of Education.2 (Am. Compl. 1–2.) Plaintiffs allege violations of 42 U.S.C. §§ 1983
and 1985(3), 18 U.S.C. §§ 1028, 1513 and 1519, and the “natural” Law of Nations and
University Declaration of Human Rights. (Id. at 4.) Plaintiffs primarily complain that Ms.
Nguyen was not afforded a grade of A-minus, to which she believed she was entitled in her class
taught by Carrillo, (id. at 4–5; Am. Compl. Ex. 2 at 1–4), and that Ms. Nguyen has had
difficulties obtaining or accessing financial aid, which has caused her further trouble in
registering for classes, (Am. Compl. 9, 11). Ms. Nguyen also repeats her allegation that she was
stopped by two campus security guards and threatened with arrest if she returned to Hunter
College. (Id. at 11.)
Plaintiffs allege that Ms. Nguyen’s Fifth and Fourteenth Amendment rights were violated
when Defendant Carrillo “fraudulently” denied Ms. Nguyen an A-minus grade. (Id. at 4–5, 11–
12.) Plaintiffs now allege the existence of an unspecified “Agreement/Contract,” related to
Carrillo’s syllabus, which Plaintiffs allege was breached when Carrillo did not calculate Ms.
Plaintiffs’ Amended Complaint is not clear as to who they intend to name as
Defendants, naming Milliken, Raab, and Carrillo in the caption but listing the City of New York,
the New York City Department of Education, City University of New York with Milliken as
Chancellor, Hunter College with Raab as President, and Carrillo as Defendants in the body of the
Amended Complaint. (See Am. Compl. 1–2.)
Nguyen’s grade properly. (Id. at 4–5.) Plaintiffs annex several documents purportedly showing
various calculations of Ms. Nguyen’s grade, including a table created by Plaintiffs comparing
“defendants’ fraudulent grade” and “true earned grade.” (Am. Compl. Ex. 2 at 1–4.) The table
indicates a discrepancy in the score assigned for “Homework/class.” (Id. at 2) The “fraudulent”
scores add up to a final percentage of 83.81, a B grade, while the “true earned grade” scores add
up to 90.21, which the document suggests equals “at least A-.” (Id.) The next document appears
to be a printout of an unidentified computer program indicating a “homework” average score of
95.6%. (Id. at 3.)
Another exhibit appears to be a printout of an email from Sandra Clarkson, Coordinator
of the STAT 113 class in the Department of Mathematics and Statistics at Hunter College,
addressed to Ms. Nguyen. It is dated January 7, 2015 and references Hunter College’s
“established grade appeals procedures.” (Id. at 4.) Plaintiffs allege that “Ms. Nguyen clearly
earned ‘that at least A-’; it was her property paid by tuition and her hard-work.” (Am. Compl.
The Amended Complaint also reiterates Ms. Nguyen’s claims related to the January 29,
2015 incident when she “was excessively arrested/detained” by Associate Director Colleen Barry
and two campus security officers, identified as Sergeant Raymond Santos and Towiek. (Id. at
11–12.) The Amended Complaint alleges that “[t]hey took away her property and threaten[ed]
Ms. Nguyen’s arrest if she is on Hunter campus the next time around.” (Id. at 11.) “They
knowingly and intentionally took away [Ms. Nguyen’s] First Amendment, Fifth Amendment,
and 14th [sic] Amendment rights among other violations because plaintiffs were politely asking
for her earned and corrected grade. . . .” (Id.) The Amended Complaint does not allege that any
of the named Defendants were involved in this incident, nor does it name Barry or the officers as
defendants. It does not provide any details in support of Ms. Nguyen’s claim that her
constitutional rights were violated during this incident.
The untimely Amended Complaint raises new allegations against Defendant Carrillo
related to his employment with the Department of Education, specifically that he was Mr.
Nguyen’s direct supervisor for two years at some time during Mr. Nguyen’s employment at the
Department of Education beginning in September of 2001. (Id. at 3, 15.) The Amended
Complaint alleges that Mr. Nguyen was harmed by Defendants’ recent actions because the recent
incident involving Ms. Nguyen “re-activated and aggravated Mr. Nguyen’s ‘previous’ physical,
psychological, and mental pain and anguish; and further inflicted severe damages to Mr.
Nguyen’s current and existing cardiac problem(s).” (Id. at 13.) Moreover, the submission
asserts that “an attack on Ms. Nguyen is the same as an attack on Mr. Nguyen because Ms.
Nguyen is a direct lineage and blood of Mr. Nguyen.” (Id. at 17.)
Plaintiffs claim that Ms. Nguyen’s personal data was compromised, although they do not
allege that the named Defendants were responsible. (Id. at 15.) The Amended Complaint
suggests that “SSN fraud” caused Ms. Nguyen to be unable to register for summer courses at
Kingsborough Community College. (Id. at 11.)
Plaintiffs allege that Ms. Nguyen suffered $339,402 in damages for the incorrect grade,
and requests immediate injunctive relief in the form of a grade adjusted to A-minus. (Id. at 6.)
For all of the alleged violations, Plaintiffs demand nine hundred trillion dollars and one cent in
damages and an unspecified “win-win resolution in the interest of CUNY/NYC/NYS and our
mother, America.” (Id. at 17–18.)
In the Amended Complaint, Plaintiffs cross-reference several of their other actions that
have been brought before this Court.3 (Id. at 4, 5, 7.) As Plaintiffs have been warned that
allegations and motions relating to other actions are not properly before the Court in this action,
and because the allegations are against the Court4 and persons who are not parties to this action,
the Court disregards Plaintiffs’ allegations regarding fraud, discrimination and injustice relating
to those actions.
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
This pro se action is one of seven filed by Mr. Nguyen in the Eastern District of New
York in the last year and a half, almost all of which have been dismissed. See Nguyen v. Bush,
No. 15-CV-641 (E.D.N.Y. filed Feb. 6, 2015) (see Docket Entry No. 6 (dismissing complaint
without leave to amend)) appeal dismissed Nos. 15-1802 and 15-1766 (2d Cir. July 8, 2015);
Nguyen v. Milliken, No. 15-CV-0587 (E.D.N.Y. filed Jan. 30, 2015) (see Docket Entry No. 5
(dismissing complaint with leave to amend)); Nguyen v. Santander Bank, No. 14-CV-3989
(E.D.N.Y. filed June 26, 2014) (see Docket Entry No. 70 (dismissing complaint with prejudice))
appeal dismissed No. 15-1928 (2d Cir. July 24, 2015); Nguyen v. JPM Chase Bank, No. 14-CV03464 (E.D.N.Y. filed June 2, 2014) (see Docket Entry No. 27 (same)) appeal dismissed No. 151927 (2d Cir. July 29, 2015); Nguyen v. China Nat’l Offshore Oil Corp. (CNOOC), No. 14-CV3327 (E.D.N.Y. filed May 29, 2014) (dismissing complaint at September 17, 2014 status
conference, with prejudice as any amendment would be futile) appeal dismissed No. 14-3871 (2d
Cir. Mar. 6, 2015); Nguyen v. Bank of America, No. 14-CV-1243 (E.D.N.Y. filed Feb. 26, 2014)
(see Docket Entry No. 22 (dismissing complaint with leave to amend)); Nguyen v. Ridgewood
Savings Bank, No. 14-CV-1058 (E.D.N.Y. filed Feb. 28, 2014) (see Docket Entry No. 41
(dismissing complaint with prejudice)) appeal dismissed No. 15-1929 (2d Cir. July 28, 2015).
Mr. Nguyen repeatedly attacks the Court as biased, presumably for dismissing his
Complaints in other actions, accuses the Court of fraud and discrimination, and appears to be
frustrated with the Court. Mr. Nguyen also appears to be annoyed that the Court has yet to
decide his motion to vacate the Court’s prior decision in Nguyen v. Bush, No. 15-CV-641, one of
the seven actions Mr. Nguyen has filed in this Court. Mr. Nguyen is reminded that he can appeal
any of this Court’s decisions to the United States Court of Appeals for the Second Circuit if he
disagrees with this Court’s decisions, as he has done in his other cases.
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).
Previously dismissed claims
Eleventh Amendment immunity from suit
Plaintiffs argue that the Eleventh Amendment does not bar suit against the City
University of New York or its Senior Colleges, citing Central Virginia Community College v.
Katz, 546 U.S. 356 (2006). (Am. Compl. 7–8.) However, Plaintiffs’ reliance on Katz is
inapposite, as that case concerned Congress’s power to make states amenable to certain in rem
bankruptcy proceedings. Katz, 546 U.S. at 379. In analyzing whether a CUNY Senior College
is an arm of the state, the Second Circuit has analyzed two factors: “(1) the extent to which the
state would be responsible for satisfying any judgment that might be entered against the
defendant entity, and (2) the degree of supervision exercised by the state over the defendant
entity.” Clissuras v. City Univ. of N.Y., 359 F.3d 79, 82 (2d Cir. 2004) (internal quotation marks
and citation omitted); see also Leitner v. Westchester Cmty. Coll., 779 F.3d 130, 137 (2d Cir.
2015) (applying two-part test articulated in Clissuras and additional factors laid out in six-part
test from Mancuso v. N.Y. State Thruway Authority, 86 F.3d 289 (2d Cir. 1996), used to
determine whether any governmental entity was an arm of the state, to determine whether suit
against State University of New York Community College was barred by Eleventh Amendment).
The Second Circuit has repeatedly found that CUNY senior colleges, like Hunter College, satisfy
this test and are arms of the state, such that suits against the senior colleges are barred by the
Eleventh Amendment. E.g., Clissuras, 359 F.3d at 83; Skalafuris v. City of N.Y., 444 F. App’x
466, 468 (2d Cir. 2011) (finding as barred employment discrimination claims against CUNY and
New York City College of Technology, a CUNY senior college); Sank v. City Univ. of N.Y., 112
F. App’x 761, 763 (2d Cir. 2004) (finding as barred breach of contract claims against CUNY and
City College of New York, a CUNY college); see also Gengo v. City Univ. of N.Y., 479 F. App’x
382, 383 (2d Cir. 2012) (finding as barred suit against CUNY central administration).
Accordingly, Ms. Nguyen’s claims against CUNY and Hunter College, and claims for anything
other than prospective injunctive relief against Milliken and Raab in their official capacities,
were properly dismissed on the ground of sovereign immunity pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(iii). See Goonewardena v. New York, 475 F. Supp. 2d 310, 329 (S.D.N.Y.
2007) (finding Section 1983 claims against CUNY and Hunter College, and individual officials,
for retrospective monetary relief barred by Eleventh Amendment (citing Ex Parte Young, 209
U.S. 123 (1908))).
Claims relating to Ms. Nguyen’s grade
The Amended Complaint more clearly delineates that Ms. Nguyen’s underlying claim is
for a deprivation of “property,” a particular grade “paid by tuition and her hard-work.” (Am.
Compl. 5.) She also asserts “the existence of Agreement/Contract.” Plaintiffs appear to allege
posting Ms. Nguyen’s incorrect grade was a violation of 42 U.S.C §§ 1983 and 1985(3) and
infringed upon Ms. Nguyen’s First, Fifth and Fourteenth Amendment Rights.
Plaintiffs have failed to show that Ms. Nguyen’s receipt of a grade other than A-minus
deprived her of constitutional rights or a constitutionally protected property interest.5 The
Supreme Court has warned that academic evaluations of students, along with other aspects of
public education, should be left largely “to the control of state and local authorities” and not to
judges. Bd. of Curators v. Horowitz, 435 U.S. 78, 89–91 (1978) (quoting Epperson v. Arkansas,
393 U.S. 97, 104 (1968)). However, “New York has recognized ‘an implied contract between a
public college and its students,’” that an academic institution must deal in good faith with its
students, which may form the basis of a Fourteenth Amendment procedural due process claim.
Marino v. City Univ. of N.Y., 18 F. Supp. 3d 320, 337 (E.D.N.Y. 2014) (quoting Olsson v. Board
of Higher Ed., 49 N.Y.2d 408, 414 (1980)); see also Susan M. v. N.Y. Law Sch., 76 N.Y.2d 241,
246–47 (1990) (“[I]n the absence of demonstrated bad faith, arbitrariness, capriciousness,
irrationality or a constitutional or statutory violation, a student’s challenge to a particular grade
or other academic determination relating to a genuine substantive evaluation of the student’s
academic capabilities, is beyond the scope of judicial review.”). “To state a Fourteenth
Amendment procedural due process claim, Plaintiff must allege that (1) CUNY officials’ refusal
to change her grade deprived her of either a ‘liberty’ or ‘property’ interest, and (2) the state’s
process was ‘constitutionally [in]adequate.’” Marino, 18 F. Supp. 3d at 337 (citations omitted);
Additionally, Plaintiffs allege no facts that would support their claim of a First
Amendment violation. Rather, Plaintiffs repeatedly allege that Ms. Nguyen had a property right
in a grade of A-minus and was denied that right when she did not receive it. Thus, the Court
analyzes Ms. Nguyen’s claim as a due process violation.
see also Morales v. New York, 22 F. Supp. 3d 256, 276 (S.D.N.Y. 2014) (quoting Bryant v. N.Y.
State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012)). To state a substantive due process claim, a
plaintiff must establish that a fundamental liberty or property interest “was infringed in an
arbitrary or irrational manner that shocks the conscience.” Marino, 18 F. Supp. 3d at 338.
In this case, regardless of whether Ms. Nguyen can show that she had a constitutionally
protected property interest in a particular grade or whether her grade was a result of Carrillo’s
bad faith, Ms. Nguyen has not indicated whether she used the school’s grade appeals procedures,
and has failed to state a claim that CUNY’s grading or appeals procedures are constitutionally
inadequate. Cf. Morales, 22 F. Supp. 3d at 277 (dismissing procedural due process claim when
plaintiff failed to take advantage of disciplinary hearing process at his college, and did not show
the process was inadequate); Marino, 18 F. Supp. 3d at 337. Furthermore, whether she grounds
her theory in the contractual right to good-faith dealing with her institution or the more general
right to an education, Ms. Nguyen’s grades at Hunter College are not protected by the Fourteenth
Amendment as a substantive fundamental right. See Marino, 18 F. Supp. 2d at 339; see also
Smith v. Guilford Bd. of Educ., 226 F. App’x 58, 61 (2d Cir. 2007) (noting there is no substantive
due process right to public education); Rafano v. Patchogue-Medford Sch. Dist., No. 06-CV5367, 2009 WL 789440, at *7 (E.D.N.Y. Mar. 20, 2009) (same). For these reasons and the
reasons set forth in this Court’s April 21, 2015 Memorandum and Order, Ms. Nguyen’s claims
regarding her grade in her statistics class are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
iii. January 29, 2015 incident
Plaintiffs provide new information about the alleged incident on January 29, 2015, by
identifying the officers who accompanied Associate Director Colleen Barry when Ms. Nguyen
was issued a Criminal Trespass Notice. However, none of these individuals are named as
defendants, and the named Defendants are not alleged to have had any involvement in this
incident. Plaintiffs do not appear to seek injunctive relief in relation to this incident, and claims
for money damages pursuant to Section 1983 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. See Iqbal, 556 U.S. at 678.
Accordingly, Ms. Nguyen’s claims related to the January 29, 2015 incident are dismissed for
failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Claim relating to social security number and financial aid
Ms. Nguyen also brings a new claim related to her social security number and her attempt
to register at Kingsborough Community College. (Am. Compl. 11, 15.) The nature of the claim
is unclear, and, in any event, the named Defendants are not alleged to have had any involvement
in this issue. Accordingly, this claim is dismissed for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
Federal Criminal Code claims
Plaintiffs, as private individuals, cannot bring claims under the listed federal criminal
laws. See Delarosa v. Serita, No. 14-CV-737, 2014 WL 1672557, at *2 (E.D.N.Y. Apr. 28,
2014) (“Violations of the Criminal Code do not provide a basis for a civil cause of action, unless
the particular provision in question includes an express or implied private right of action.”
(quoting Weinstein v. City of New York, No. 13-CV-06301, 2014 WL 1378129, at *4 (S.D.N.Y.
Apr. 8, 2014))); see also Bender v. City of New York, No. 09-CV-3286, 2011 WL 4344203, at *2
(S.D.N.Y. Sept. 14, 2011) (finding no private right of action under 18 U.S.C. § 1513); Wright v.
Waterside Plaza LLC, No. 07-CV-9303, 2008 WL 872281, at *2 (S.D.N.Y. Apr. 2, 2008)
(finding no private right of action under 18 U.S.C. § 1519) aff’d, 354 F. App’x 594 (2d Cir.
2009); Garay v. U.S. Bancorp, 303 F. Supp. 2d 299, 302 (E.D.N.Y. 2004) (finding no private
right of action under 18 U.S.C. § 1028). Plaintiffs’ alleged claims pursuant to 18 U.S.C.
§§ 1028, 1513 and 1519 are therefore dismissed.
iii. Motion to vacate and claims on behalf of Mr. Nguyen
Mr. Nguyen’s motion to vacate the Court’s April 21, 2015 Memorandum and Order,
dismissing the Complaint as to him for lack of standing, attempts to invoke standing on the basis
of Mr. Nguyen’s prior interactions with Defendant Carrillo, dating back to September of 2001.
However, Mr. Nguyen’s alleged conflict with Carrillo and any harm he may have suffered at that
time are not within the scope of Plaintiffs’ original Complaint. In the Amended Complaint,
Plaintiffs now allege that Mr. Nguyen suffered physical and psychological injury because of his
daughter’s incident at Hunter College. (Am. Compl. 13–14.) These potential state law claims
for emotional distress or related torts do not raise any federal or constitutional interests over
which this Court would have original jurisdiction, and the Court declines to exercise
supplemental jurisdiction over any state law claims Plaintiffs attempt to bring in this action. See
Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Centers Ret. Plan v. Morgan Stanley
Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013). Accordingly, Mr. Nguyen’s motion to vacate
the initial dismissal is denied, and the Amended Complaint is dismissed as to Mr. Nguyen.
For the foregoing reasons, the Amended Complaint fails to cure the deficiencies in the
Complaint, and the action is dismissed in its entirety. 28 U.S.C. § 1915(e)(2)(B). 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. See Coppedge v. United
States, 369 U.S. 438, 444–45 (1962). The Clerk of Court is directed to close this case.
MARGO K. BRODIE
United States District Judge
Dated: August 18, 2015
Brooklyn, New York
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