Nguyen et al v. Milliken et al
Filing
16
MEMORANDUM AND ORDER denying 15 Motion to Vacate. For the reasons discussed in the attached Memorandum and Order, the Court denies Plaintiffs' motion to vacate or reconsider the Memorandum and Order dated August 18, 2015. Ordered by Judge Margo K. Brodie on 5/20/2016. (Deknatel, Anna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------TIFFANY NGUYEN and THOMAS NGUYEN,
Plaintiffs,
v.
NOT FOR PUBLICATION
MEMORANDUM & ORDER
15-CV-0587 (MKB)
JAMES B. MILLIKEN, CITY OF NEW
YORK/CITY UNIVERSITY OF NEW YORK,
JENNIFER RAAB, HUNTER COLLEGE,
HOLGER CARRILLO and NEW YORK CITY
DEPARTMENT OF EDUCATION,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Tiffany Nguyen and Thomas 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 as to Ms. Nguyen for failure to state a
claim (the “April 21, 2015 Decision”). Nguyen v. Milliken, 104 F. Supp. 3d 224, 232 (E.D.N.Y.
2015) (“Nguyen I”). Plaintiffs filed an Amended Complaint on July 7, 2015, adding new
Defendants and asserting 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.) By Memorandum and Order dated August 18, 2015, the
Court held that Plaintiffs failed to cure the deficiencies in the Complaint and dismissed the
Amended Complaint (the “August 18, 2015 Decision”). Nguyen v. Milliken, No. 15-CV-0587,
2015 WL 4925884, at *1 (E.D.N.Y. Aug. 18, 2015) (“Nguyen II”). On September 14, 2015,
Plaintiffs moved to vacate the judgment entered on August 18, 2015 and, in effect, seek
reconsideration of the Court’s August 18, 2015 Decision. (Pls. Mot. to Vacate J. (“Pls. Mot.”),
Docket Entry No. 15) For the reasons discussed below, the Court denies Plaintiffs’ motion.
I.
Background
The Court assumes familiarity with the facts as set forth more fully in the April 21, 2015
Decision, Nguyen I, 104 F. Supp. 3d at 227, and the August 18, 2015 Decision, Nguyen II, 2015
WL 4925884, at *1, and provides a summary of the pertinent facts.
According to Plaintiffs, Carrillo, a part-time instructor at Hunter College, “fraudulently”
denied Ms. Nguyen an A-minus grade, which she believed she was entitled to, violating her Fifth
and Fourteenth Amendment rights. (Am. Compl. 4–5, 11–12; Am. Compl. Ex. 2 at 1–4.)
Plaintiffs allege that there is an unspecified “Agreement/Contract,” related to Carrillo’s course
syllabus, which Carrillo breached by not properly calculating Ms. Nguyen’s grade. (Am.
Compl. 4–5.) According to Plaintiffs, there were discrepancies in the calculation of Ms.
Nguyen’s grade and the grade “was her property paid by tuition and her hard-work.” (Id.
at 2, 5.) In retaliation for her complaints about her grade and in violation of her First, Fifth and
Fourteenth Amendment rights, security guards stopped Ms. Nguyen, “took away her property,”
and threatened to arrest her if she returned to Hunter College. (Id. at 11.) Plaintiffs also allege
that Ms. Nguyen’s personal data was compromised, resulting in “SSN fraud,” which caused Ms.
Nguyen difficulties obtaining or accessing financial aid and prevented her from registering for
summer courses at Kingsborough Community College. (Id. at 9, 11, 15.)
Plaintiffs allege that Mr. Nguyen was harmed by Defendants because the incident
involving Ms. Nguyen “re-activated and aggravated Mr. Nguyen’s ‘previous’ physical,
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psychological, and mental pain and anguish; and further inflicted severe damages to Mr.
Nguyen’s current and existing cardiac problem(s).” (Id. at 13.) Plaintiffs assert 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 also assert that, during a two year period when
Carrillo was Mr. Nguyen’s direct supervisor at the Department of Education, Carrillo treated Mr.
Nguyen poorly. (Id. at 3, 15.) Plaintiffs vaguely assert that the unexplained poor treatment was
part of a larger conspiracy against Mr. Nguyen. (Id.)
Plaintiffs allege that Ms. Nguyen suffered $339,402 in damages as a result of the
incorrect grade and request that her grade be adjusted to A-minus. (Id. at 6.) Plaintiffs also
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.)
II. Discussion
a.
Standards of review
i.
Rule 60(b)(4)
Federal Rule of Civil Procedure 60(b) allows a court to provide relief from a final
judgment, order, or proceeding where “(4) the judgment is void.” Fed. R. Civ. P. 60(b).
“Properly applied, Rule 60(b) strikes a balance between serving the ends of justice and
preserving the finality of judgments.” Reese v. Bahash, 574 F. App’x 21, 23 (2d Cir. 2014)
(quoting Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)). Such a motion “may not be used as
a substitute for appeal.” Stevens v. Schneiderman, No. 05-CV-10819, 2011 WL 6780583, at *5
(S.D.N.Y. Dec. 23, 2011) (quoting United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir.
2009)). “A Rule 60(b) motion is properly denied where it seeks only to relitigate issues already
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decided.” Maldonado v. Local 803 I.B. of Tr. Health & Welfare Fund, 490 F. App’x 405, 406
(2d Cir. 2013) (citing Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir. 1984)).
“Relief from a judgment pursuant to Rule 60(b)(4) is not warranted ‘simply because [the
judgment] is or may have been erroneous.’” Estate of Shefner ex rel. Shefner v. Beraudiere, 582
F. App’x 9, 12 (2d Cir. 2014) (alteration in original) (quoting U.S. Aid Funds v. Espinosa, 559
U.S. 260, 270 (2010)). “Rather, Rule 60(b)[(4)] relief is appropriate only ‘in the rare instance
where a judgment is premised either on a certain type of jurisdictional error or on a violation of
due process that deprives the party of notice or an opportunity to be heard.’” Id. (quoting
Espinosa, 559 U.S. at 270); see also Williams v. City Univ. of N.Y., 590 F. App’x 84, 85 (2d Cir.)
(same), cert. denied sub nom. Williams v. City Univ. of N.Y., Brooklyn Coll., 136 S. Ct. 253
(2015); Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 193 (2d Cir. 2006) (“A judgment
is void under Rule 60(b)(4) of the Federal Rules of Civil Procedure only if the court that
rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner
inconsistent with due process of law.” (citation and internal quotation marks omitted)).
ii.
Reconsideration
The standard for granting a motion for reconsideration is strict, and “[r]econsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co.,
Ltd., 628 F. App’x 793, 796 (2d Cir. 2015) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255,
257 (2d Cir. 1995)); Bank of Am. Nat’l Ass’n v. AIG Fin. Prods. Corp., 509 F. App’x 24, 27 (2d
Cir. 2013) (“The standard for granting such a motion is strict . . . .” (quoting Shrader, 70 F.3d at
257)); see also Local Civ. R. 6.3 (The moving party must “set[] forth concisely the matters or
4
controlling decisions which counsel believes the Court has overlooked.”).
It is thus “well-settled” that a motion for reconsideration is “not a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998)). A motion for reconsideration is “neither an occasion for repeating old arguments
previously rejected nor an opportunity for making new arguments that could have previously
been made.” Simon v. Smith & Nephew, Inc., 18 F. Supp. 3d 423, 425 (S.D.N.Y. 2014) (citations
and internal quotation marks omitted). In order to prevail on a motion for reconsideration, “the
moving party must demonstrate that the Court overlooked controlling decisions or factual
matters that were put before the Court on the underlying motion.” Lichtenberg v. Besicorp Grp.
Inc., 28 F. App’x 73, 75 (2d Cir. 2002) (citations and internal quotation marks omitted); see also
Stoner v. Young Concert Artists, Inc., No. 11-CV-7279, 2013 WL 2425137, at *1 (S.D.N.Y. May
20, 2013) (“A motion for reconsideration is an extraordinary remedy, and this Court will not
reconsider issues already examined simply because [a party] is dissatisfied with the outcome of
his case. To do otherwise would be a waste of judicial resources.” (alteration in original));
Henderson v. City of New York, No. 05-CV-2588, 2011 WL 5513228, at *1 (E.D.N.Y. Nov. 10,
2011) (“In order to have been ‘overlooked,’ the decisions or data in question must have been put
before [the court] on the underlying motion . . . and which, had they been considered, might have
reasonably altered the result before the court.” (alterations in original) (citations omitted)).
b.
The August 18, 2015 Decision
In the August 18, 2015 Decision, the Court dismissed the Amended Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) for lack of standing and for failure to state a claim. The Court held
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that Ms. Nguyen’s claims against CUNY and Hunter College, and her claims against Milliken
and Raab in their official capacities for any relief other than prospective injunctive relief, were
properly dismissed based on sovereign immunity. Nguyen II, 2015 WL 4925884, at *4. The
Court noted that the Second Circuit has repeatedly found that CUNY senior colleges, like Hunter
College, are arms of the state, such that suits against the senior colleges are barred by the
Eleventh Amendment. Id. (first citing Clissuras v. City Univ. of N.Y., 359 F.3d 79, 83 (2d Cir.
2004); and then citing Sank v. City Univ. of N.Y., 112 F. App’x 761, 763 (2d Cir. 2004)); see also
Sank, 112 F. App’x at 763 (finding as barred breach of contract claims against CUNY and City
College of New York, a CUNY college).
The Court held that Plaintiffs failed to state a claim as to Ms. Nguyen’s grade because the
Amended Complaint did not sufficiently allege that Defendants deprived Ms. Nguyen of
constitutional rights or a constitutionally protected property interest, as necessary to state a due
process claim. Nguyen II, 2015 WL 4925884, at *5. The Court concluded that Plaintiffs failed
to allege a procedural due process claim because Ms. Nguyen had not indicated whether she used
the school’s grade appeals procedures, and failed to allege that CUNY’s grading or appeals
procedures are constitutionally inadequate. Id. The Court further explained that Ms. Nguyen has
no substantive due process claim because her grades are not protected by the Fourteenth
Amendment as a fundamental right. Id. (first citing Marino v. City Univ. of N.Y., 18 F. Supp. 3d
320, 337 (E.D.N.Y. 2014); and then citing Smith v. Guilford Bd. of Educ., 226 F. App’x 58, 61
(2d Cir. 2007)).
The Court dismissed Plaintiffs’ claims regarding Ms. Nguyen’s incident with the campus
security guards because Plaintiffs had not named as defendants the individuals identified as
being involved in the incident, which is necessary to assert a claim for money damages pursuant
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to section 1983. Id. at *6. The Court also dismissed Plaintiffs’ claim regarding Ms. Nguyen’s
social security number and her attempt to register at Kingsborough Community College because
Plaintiffs failed to allege any involvement by the named Defendants. Id. In addition, the Court
dismissed the claims brought by Plaintiffs pursuant to 18 U.S.C. §§ 1028, 1513 and 1519,
because Plaintiffs, as private individuals, cannot bring claims under these federal criminal
statutes. Id.
Finally, the Court denied Mr. Nguyen’s request that the Court vacate its earlier finding
that Mr. Nguyen lacked standing to assert claims on behalf of Ms. Nguyen. Id. The Court
explained that new allegations in the Amended Complaint about Carrillo’s unspecified poor
treatment of Mr. Nguyen when Mr. Nguyen was employed by the Department of Education were
not within the scope of the harm to Ms. Nguyen, as asserted in the original Complaint. Id. The
Court declined to exercise supplemental jurisdiction over any state law claims for emotional
distress or related torts alleged by Plaintiffs. Id.
c.
Plaintiffs’ motion to vacate judgment
On September 14, 2015, Plaintiffs moved for relief from the August 18, 2015 judgment
and, in substance, for reconsideration of the August 18, 2015 Decision. (Pls. Mot. 1.) While
much of the motion is incoherent and includes numerous facts neither contained in, nor related
to, the Amended Complaint, Plaintiffs appear to make four arguments in support of their motion.
First, Plaintiffs argue that the August 18, 2015 Decision was biased and assert that the Court
should recuse itself from deciding this matter. (Id. at 7–8.) Second, Plaintiffs assert that the
Court improperly and prematurely dismissed the Amended Complaint sua sponte and contrary to
Second Circuit law. (Id. at 6–7.) Third, Plaintiffs appear to seek reconsideration of the Court’s
decision as to Mr. Nguyen’s standing to assert claims on behalf of Ms. Nguyen. (Id. at 4, 9–10.)
7
Fourth, Plaintiffs appear to seek reconsideration of the Court’s determination that CUNY and
Hunter College are immune from suit. (Id. at 5.) Plaintiffs’ arguments fail to provide a basis for
relief from the judgment or for reconsideration.
i.
Plaintiffs have not presented a basis for the Court’s recusal or for the
vactatur of the judgment pursuant to Rule 60
Plaintiffs argue that the Court should “immediately disqualify (recuse) herself before
judicial sanctioning sets in” because “manifest bias and injustice” has violated 28 U.S.C. §§ 144
and 445. (Pls. Mot. 8–9.) In disputing the Court’s decision dismissing the Amended Complaint,
Plaintiffs assert that the Court’s conduct has been “dishonest[] and harmful” and inconsistent
with testimony given in response to questions by Senators during the confirmation process. (Id.
at 7.) Plaintiffs further argue that “your Honor [n]o longer [has] the jurisdiction to render”
decisions because of this alleged bias and misconduct, (id. at 9), and Mr. Nguyen has been
denied “notice and an opportunity to be heard” because his “dissent voice . . . was clearly taken
away,” (id. at 12). The Court construes Plaintiffs’ claim as a motion for the Court to recuse itself
and considers Plaintiffs’ arguments to set aside the judgment pursuant to Rule 60(b)(4).1
Section 144 states that a party may request the removal of a district court judge from a
pending matter where the judge “has a personal bias or prejudice either against him or in favor of
any adverse party,” provided the party sufficiently states “the facts and the reasons for the belief
that bias or prejudice exists.” 28 U.S.C. § 144. Section 445 provides that “[a]ny justice, judge,
or magistrate judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455; United States v. Amico, 486 F.3d
1
Plaintiffs do not cite Rule 60 or any other rule in asking the Court to vacate the August
18, 2015 judgment. The Court considers Rule 60(b)(4) because it appears to be most analogous
to Plaintiffs’ arguments in support of their motion. The Court notes that Plaintiffs cannot
otherwise establish a basis to vacate the judgment pursuant to any of the subsections of Rule
60(b).
8
764, 775 (2d Cir. 2007) (Section 455(a) “requires that a judge recuse himself ‘in any proceeding
in which his impartiality might reasonably be questioned.’” (quoting Liljeberg v. Health Serv.
Acquisition Corp., 486 U.S. 847, 859 (1988))). In considering whether to recuse itself from a
case, the court must consider whether “an objective, disinterested observer fully informed of the
underlying facts[] would entertain significant doubt that justice would be done absent recusal.”
Cox v. Onondaga Cty. Sheriff's Dep’t, 760 F.3d 139, 150 (2d Cir. 2014) (internal quotation
marks omitted) (quoting United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003)); see also
Amico, 486 F.3d at 775 (explaining that the inquiry considers, “when coupled with the judge’s
rulings on and conduct regarding them, would [the allegations] lead the public reasonably to
believe that these problems affected the manner in which he presided”). For example, in Amico,
the Second Circuit held that to avoid the appearance of partiality, a district court judge should
have recused himself from a case involving mortgage fraud charges because the judge had
applied for a loan from a related mortgage lender, the judge had “a relationship of some sort”
with the lender, and the loan application “appeared to have a number of misrepresentations.”
Amico, 486 F.3d at 776.
However, a litigant’s “disagreement [with a court’s rulings] ‘almost never constitute[s] a
valid basis for a bias or partiality motion.’” Jordan v. Verizon Corp., 391 F. App’x 10, 13
(2d Cir. 2010) (second alteration in original) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)); see Wright v. C.I.R., 571 F.3d 215, 220 (2d Cir. 2009) (“[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” (citation omitted)); LoCascio v.
United States, 473 F.3d 493, 495 (2d Cir. 2007) (“[O]pinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they display a
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deep-seated favoritism or antagonism that would make fair judgment impossible.”). For
example, in LoCasio, the defendant argued that the district court’s decision to hold him in
contempt of court and its numerous rulings on motions counter to the defendant’s positions
demonstrated the district court’s bias. LoCascio, 473 F.3d at 496. The Second Circuit affirmed
the denial of a recusal motion because the defendant’s arguments “did not raise even a suspicion
of a deep-seated and unequivocal antagonism.” Id. (citation and internal quotation marks
omitted).
Moreover, the Second Circuit has cautioned that “a judge should not disqualify himself in
the absence of a violation of § 455.” Amico, 486 F.3d at 781 n.4 (2d Cir. 2007) (citing In re
Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)); see also Dekom v. Nassau
Cty., 595 F. App’x 12, 15 (2d Cir. 2014) (affirming the denial of a motion for recusal where the
“plaintiffs advanced no basis for the district judge to recuse herself”); Edwards v. Horn,
No. 10-CV-6194, 2011 WL 569872, at *3 (S.D.N.Y. Feb. 9, 2011) (A judge has “an affirmative
duty . . . not to disqualify himself unnecessarily, particularly where the request for
disqualification was not made at the threshold of the litigation and the judge has acquired a
valuable background of experience.” (citation and quotation marks omitted) (quoting United
States v. Yonkers Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991))).
Plaintiffs argue that the Court failed to construe Plaintiffs’ allegations in their favor and
the Court’s rulings violated Mr. Nguyen’s rights to assert these claims by ignoring the alleged
widespread conspiracy against Mr. Nguyen. (Id. at 14–15.) Plaintiffs’ dispute is with the
Court’s findings in the August 18, 2015 Decision, and Plaintiffs’ legal arguments are properly
addressed in the context of their motion to reconsider or on appeal. Plaintiffs have not presented
any factual allegations that support their claim that the Court has a “personal bias or prejudice”
10
and, therefore, have not provided a basis for an “objective, disinterested observer” to entertain
doubt about the Court’s impartiality. Because Plaintiffs make no factual allegations to support
their claim of bias, the Court denies’ Plaintiffs’ request for recusal from this matter.
For the same reasons, Plaintiffs have failed to establish a basis for vacating the Court’s
judgment pursuant to Rule 60(b)(4), as Plaintiffs’ arguments are insufficient to demonstrate that
the Court’s determinations deprived Plaintiffs of an opportunity to be heard. See Grace, 443
F.3d at 193 (“A judgment is void under Rule 60(b)(4) of the Federal Rules of Civil Procedure
only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it
acted in a manner inconsistent with due process of law.” (citation and internal quotation marks
omitted)); see also Sanchez v. MTV Networks, 525 F App’x 4, 6 (2d Cir. 2013).
ii.
Plaintiffs have not identified any facts or law overlooked by the Court
1.
Sua sponte dismissal
Seeking reconsideration, Plaintiffs argue that the Court improperly dismissed the
Amended Complaint sua sponte and improperly relied on the Second Circuit’s decision in Abbas
v. Dixon, 480 F.3d 636 (2d Cir. 2007). According to Plaintiffs, unlike the plaintiff in Abbas,
Plaintiffs are not prisoners, but “natural person(s)/American citizen(s) with full constitutional
rights,” and Plaintiffs “firmly believe that at this point we are unequally treated,” because the
Court “discriminatorily treated [Plaintiffs] even worse than a prisoner such as Abbas because of
[the Court’s] bad practice.” (Pls. Mot. 6.) Plaintiffs assert that the Court’s sua sponte dismissal
is “by itself grounds for reversal,” and that a sua sponte dismissal without giving Plaintiffs
“notice and an opportunity to be heard” was improper and “violat[ed] cannon [sic] 1 of
upholding the independence of the judiciary” by making the Court “a proponent rather than an
independent entity.” (Id. at 7.)
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Plaintiffs point to no controlling law that the Court overlooked. Pursuant to 28 U.S.C.
§ 1915(e)(2)(B), the district court must perform a screening function for pro se plaintiffs who
wish to proceed in forma pauperis. 28 U.S.C. § 1915(e)(2)(B); see also Fowlkes v. Ironworkers
Local 40, 790 F.3d 378, 383 n.5 (2d Cir. 2015) (“Under 28 U.S.C. § 1915(e)(2)(B)(ii), a court
must dismiss at any time an in forma pauperis complaint that fails to state a claim on which
relief may be granted.” (citations and internal quotation marks omitted)). “[D]istrict courts may
dismiss an action sua sponte on limitations grounds in certain circumstances where ‘the facts
supporting the statute of limitations defense are set forth in the papers plaintiff himself
submitted.’” Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir.
2011). “To avoid sua sponte dismissal of a § 1983 claim, a plaintiff must allege that (1) the
defendant was a state actor, i.e., acting under color of state law, when he committed the violation
and (2) the defendant deprived the plaintiff of ‘rights, privileges or immunities secured by the
Constitution or laws of the United States.’” Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir.
2015) (quoting Hayut v. State Univ. of N.Y., 352 F.3d 733, 743–44 (2d Cir. 2003)).
Here, consistent with the requirements of 28 U.S.C. § 1915(e)(2)(B) and binding
precedent, the Court dismissed the Complaint and granted Ms. Nguyen leave to file an amended
complaint. Plaintiffs filed three requests for extension of the time to file an amended complaint.
(Docket Entry Nos. 7, 10, 11.) The Court granted the three requests for additional time to file an
amended complaint and, on June 22, 2015, warned Plaintiffs that failure to file an amended
complaint by July 3, 2015, two and a half months after the Court’s decision allowing Plaintiffs to
amend the Complaint, would result in dismissal of the action. (Order dated June 22, 2015.)
Plaintiffs filed the Amended Complaint on July 7, 2015. In the August 18, 2015 Decision, the
Court again considered the sufficiency of Plaintiffs’ allegations as well as Plaintiffs’ arguments
12
that Mr. Nguyen has standing to assert claims on behalf of Ms. Nguyen. The Court dismissed
the Amended Complaint for failure to state a claim, as explained above.
Rather than citing to law overlooked by the Court, Plaintiffs point to the Court’s citation
to Abbas and argue that the Court misapplied the law. (Pls. Mot. 6–7.) This is insufficient to
warrant reconsideration. See E.E.O.C. v. Bloomberg L.P., 751 F. Supp. 2d 628, 651 (S.D.N.Y.
2010) (“[A] mere disagreement with the Court’s legal determination is not a valid basis for
reconsideration.”). In any event, the Court did not commit error in citing to Abbas. In Abbas,
the Second Circuit held that the district court improperly dismissed a pro se plaintiff’s complaint
sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Id. at 639. The district
court held that the face of the complaint provided no basis to toll the statute of limitations period,
but the Second Circuit reversed the district court decision and held that, because the plaintiff was
not required to affirmatively plead facts that would toll the statute of limitations, the district court
could not determine whether the plaintiff may have meritorious tolling arguments, and should
not have dismissed the complaint. Id.
Here, unlike in Abbas, the Court did not dismiss the Amended Complaint based on statute
of limitations grounds, and in addition, the Court granted Plaintiffs leave to file an amended
complaint to allow Mr. Nguyen to present facts in support of his claim of standing and to state a
claim pursuant to section 1983. Nguyen I, 104 F. Supp. 3d at 232. The Court also considered the
merits of the claims Plaintiffs attempted to raise, finding that Plaintiffs failed to state any claims.
This is precisely the screening function required under 28 U.S.C. § 1915, as explained in Abbas,
and was the reason for the Court’s citation to Abbas. See Abbas, 480 F.3d at 639 (Sections
“1915(e)(2)(B)(ii) and 1915A(b)(1) . . . provide an efficient means by which a court can screen
for and dismiss legally insufficient claims.”). Plaintiff has not presented a basis for
13
reconsideration of the August 18, 2015 Decision, and the Court denies reconsideration.
2.
Eleventh Amendment
Plaintiffs argue that in reaching its decision that CUNY and Hunter College are immune
from suit under the Eleventh Amendment, the Court overlooked “right–correct–true facts”
including “evidence[] of potential ‘double identity’ of [New York City] and [New York State]”
and arms of the state including Hunter College and CUNY.” (Pls. Mot. 5.) Plaintiffs state that
the Court “know[s] that [New York City] or [New York State] could have been freely sued and
liable” to Plaintiffs and that these entities have an obligation to be “transparent in identity” and
“must be stripped of their power and protection.” (Id.) Plaintiffs fail to identify any law to
support their summary assertions, and this re-argument of the dismissal of claims against CUNY
and Hunter College is insufficient to warrant reconsideration. See E.E.O.C., 751 F. Supp. 2d
at 651. The Court did not overlook controlling law and denies Plaintiff’s motion for
reconsideration on this issue.
3.
Standing
Plaintiffs request for a second time that the Court vacate or reconsider its determination
that Mr. Nguyen does not have standing to assert claims on behalf of Ms. Nguyen. Plaintiffs
argue that Mr. Nguyen “is undoubtedly and undisputedly by law of nature the father [and]
natural guardian of Ms. Nguyen.” (Pl. Mot. 4.) Plaintiffs further argue that the denial of the
motion to vacate the decision dismissing Mr. Nguyen for lack of standing was “baseless and
frivolous,” (id. at 10), and that the Court is “attacking or abridging [Mr. Nguyen’s] privilege or
right of parenthood,” (id. at 11).2
2
Plaintiffs do not allege that Ms. Nguyen is a minor. Rather, in the Amended
Complaint, Plaintiffs state that Ms. Nguyen had “never met Carrillo in her previous more than 18
years of life” and appear to state that Ms. Nguyen was born in 1996. (Am. Compl. 8–9.)
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Plaintiffs have not identified any facts or controlling law that the Court overlooked. In
the April 21, 2015 Decision, the Court held that Mr. Nguyen did not have standing because he
failed to show that he suffered an injury traceable to Defendants’ conduct. Nguyen I, 104
F. Supp. 3d at 229. The Court explained that, because the claims centered on allegations of harm
to Ms. Nguyen by Hunter College employees and did not advance any theory of harm to Mr.
Nguyen, the Complaint did not demonstrate that Mr. Nguyen was personally deprived of rights
or privileges guaranteed by the United States Constitution and, thus, he did not have standing to
bring a section 1983 action. Id. (first citing Collins v. W. Hartford Police Dep’t, 324 F. App’x
137, 139 (2d Cir. 2009); and then citing Casino v. Feilding, No. 13-CV-5095, 2013 WL
5970694, at *4 (E.D.N.Y. Nov. 8, 2013)). In the August 18, 2015 Decision, the Court explained
that new allegations based on Mr. Nguyen’s prior interactions with Carrillo were outside the
scope of the original Complaint and, therefore, did not provide a basis for standing. Nguyen II,
2015 WL 4925884, at *6. Because a motion for reconsideration is not “an occasion for repeating
old arguments previously rejected,” Plaintiffs have not identified a basis for the Court to
reconsider its determination that Mr. Nguyen lacks standing.
Moreover, to the extent that Plaintiffs argue that the Court overlooked law regarding the
rights of parents to assert claims on behalf of their adult children, parenthood is not a sufficient
basis to create standing to assert claims pursuant to section 1983. “Parents generally have
standing to assert the claims of their minor children.” Altman v. Bedford Cent. Sch. Dist., 245
F.3d 49, 70 (2d Cir. 2001). However, “‘such rights as parents to prosecute an action on their
child’s behalf clearly cease’ when the child becomes an adult.” Capellupo v. Webster Cent. Sch.
Dist., No. 13-CV-6481, 2014 WL 6974631, *3 (W.D.N.Y. Dec. 9, 2014) (alterations omitted)
(quoting Schuppin v. Unification Church, 435 F. Supp. 603, 605 (D. Vt. 1977), aff’d 573 F.2d
15
1295 (2d Cir. 1977)). In addition, “although parents may sue on behalf of their minor child, they
do not have standing to assert claims on their own behalf for a violation of their child’s rights.”
HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL 4477552, *19 (S.D.N.Y.
Sept. 27, 2012) (citation omitted). A parent “lacks standing to bring individual claims under
§ 1983 based upon a deprivation of [a child’s] constitutional rights” because “only the person
toward whom the state action was directed, and not those incidentally affected may maintain a
§ 1983 claim.” Morgan v. City of New York, 166 F. Supp. 2d 817, 819 (S.D.N.Y. 2001) (internal
quotation marks and citation omitted); see also Horton v. Bd. of Educ. of the Sherburne-Earlville
Cent. Sch. Dist., No. 15-CV-782, 2016 WL 2354266, at *2 (N.D.N.Y. May 4, 2016) (dismissing
section 1983 claim asserted by a parent for lack of standing); Naples v. Stefanelli, 972 F. Supp.
2d 373, 385 (E.D.N.Y. 2013) (same). Accordingly, the Court denies Plaintiffs’ motion for
reconsideration as to the Court’s determination that Mr. Nguyen lacks standing.
III. Conclusion
For the foregoing reasons, the Court denies Plaintiffs’ motion to vacate the judgment or
reconsider its August 18, 2015 Decision.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 20, 2016
Brooklyn, New York
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