Nguyen et al v. Milliken et al
MEMORANDUM & ORDER: Plaintiffs' requests to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 are granted solely for the purpose of this Order. (ECF Nos. 2 , 3 .) For the reasons set forth below, the action is dism issed pursuant to 28 U.S.C. § 1915(e)(2)(B). In light of Ms. Nguyen's pro se status, the Court grants her leave to replead the Complaint to correct the deficiencies noted herein. Any amended complaint must be filed within 30 days of the date of this Memorandum and Order. The amended complaint must be captioned "Amended Complaint" and bear the same docket number as this Memorandum and Order. No summons shall issue at this time and all further proceedings shall be stayed until Ms. Nguyen has complied with this order. If Ms. Nguyen fails to file an amended complaint within 30 days, the instant action shall be dismissed. Accordingly, the Complaint is dismissed as to Thomas Nguyen for lack of stand ing and as to Tiffany Nguyen for failure to state a claim against Defendants. 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. SO ORDERED by Judge Margo K. Brodie, on 4/21/2015. C/mailed to pro se Plaintiffs. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------TIFFANY NGUYEN and THOMAS NGUYEN,
MEMORANDUM & ORDER
CHANCELLOR JAMES B. MILLIKEN, City
University of New York, PRESIDENT JENNIFER
RAAB, Hunter College, and HOLGER CARRILLO,
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Tiffany Nguyen (“Ms. Nguyen”) and Thomas Nguyen (“Mr. Nguyen”)
commenced the above-captioned action on January 30, 2015 against the City University of New
York, James B. Milliken, Hunter College, Jennifer Raab and Holger Carrillo. (Compl., Docket
Entry No. 1.)1 Plaintiffs seek relief pursuant to 42 U.S.C. §§ 1983 and 1985(3) for violations of
Ms. Nguyen’s First Amendment, Fifth Amendment and Fourteenth Amendment rights.2 (Id. at
1–2.) Plaintiffs’ requests to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 are granted
For the purposes of this Memorandum and Order, the Court will refer to the Complaint
and the documents annexed to the Complaint as the “Complaint.” 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.
Plaintiffs also vaguely refer to “fraud,” “severe and extreme physical injuries,” mental
and emotional distress, and “deceptive practices.” (Compl. 2–3.) Because, as discussed below,
the Court finds that Plaintiffs have failed to state a plausible claim under federal law, the Court
declines to exercise supplemental jurisdiction over any state law claims, to the extent Plaintiffs
are attempting to assert such state law claims.
solely for the purpose of this Order.3 For the reasons set forth below, the action is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B).
The following factual allegations are taken from the Complaint. Mr. Nguyen’s daughter
Ms. Nguyen was a student at the City University of New York (“CUNY”), Hunter College.
(Compl. 1–2.) On or about December 28, 2014, Carrillo, who is identified as a part-time
instructor at Hunter College, “allegedly committed fraud(s) by posting [P]laintiff’s, [Ms.
Nguyen’s] incorrect grade . . . on CUNY system and informing [P]laintiff of her grade via
email.” (Id. at 2.) According to a document annexed to the Complaint, it appears that Ms.
Nguyen received a grade of “B” in “Stat,” and demands “a correct grade of at least A- (Aminus).” (Id. at 5.) Mr. Nguyen advised Ms. Nguyen to request that the “error/wrong grade” be
corrected “in a ‘peaceful and professional manner’ while [Mr. Nguyen] kept watching on the
‘sideline.’” (Id. at 2.) The circumstances and date of this “request” are not indicated.
On January 29, 2015, Ms. Nguyen was confronted by Hunter Associate Director of
Student Conduct Colleen Barry and two campus security officers outside of her classroom. (Id.)
According to the Complaint “[P]laintiffs were politely asking for her earned and corrected grade
but instead, [ ] discovered fraud and conspiracy.” (Id.) Barry and the security officers took away
unidentified property from Ms. Nguyen and threatened to arrest her if she returned to Hunter
College’s campus. (Id.) A Criminal Trespass Warning from the Hunter College Department of
Public Safety, which is partially obscured in the photocopy submitted to the Court such that a
It is not clear that Mr. Nguyen qualifies for in forma pauperis status, given his monthly
income, which he reported to be $4030 per month. (Thomas Nguyen Mot. for Leave to Proceed
In Forma Pauperis 1, Docket Entry No. 2.) However, based on Mr. Nguyen’s representation
that he had only $453 in take-home pay for the period of December 2, 2014 through December
15, 2014, the Court grants his application for the purposes of this Memorandum and Order.
date cannot be discerned, and a business card for Colleen Barry are attached as exhibits to the
Complaint. (Id. at 4.) The Criminal Trespass Warning states that Ms. Nguyen is prohibited from
entering Hunter College at 695 Park Avenue in New York City without express written
permission from the Hunter College Department of Public Safety. (Id.)
Plaintiffs demand in excess of $900 trillion in damages for “causing [P]laintiff(s) severe
and extreme physical injuries; for causing [P]laintiffs mental and physical damages, suffering
emotional and mental distress; for using deceptive practices; for depriving [P]laintiff(s) the right
to life, for taking away [P]laintiff’s First Amendment right, among many other rights guaranteed
by . . . statutes and the [United States] Constitution, pursuant to 42 U.S.C. § 1983, 42 U.S.C.
§ 1985(3), etc.” (Id. at 3.) Plaintiffs offer to “re-consider, as a matter of law, a win-win
resolution in the interest of CUNY and our mother America, if DEFENDANT exhibited honest
goodwill and remorse as detailed in Exhibit** [sic4] from which one can easily see [Ms.
Nguyen’s] true grade of A- and her fair compensation for pain and suffering of going through
this.” (Id.) In an attached exhibit, Plaintiffs request “a correct grade of at least A- (A-minus)”
and $339,402 in compensation. (Id. at 5.)
The Complaint also states that Plaintiffs’ “third demand is to implicate Carillo and his
‘distant-outside-CUNY’ MASTERMIND(s) . . . to pay for their ‘CRIMINAL’ violation(s).” (Id.
at 3.) Plaintiffs reference a third attached exhibit, which appears to be a “Case Sheet” from an
incident that occurred at the China Airlines check-in counter at an unidentified airport on August
26, 2007, in which a masked person stole Mr. Nguyen’s and his family’s passports and Ms.
Nguyen was dragged on the floor. (Id. at 6.)
Plaintiffs used symbols to differentiate between the Exhibits annexed to the Complaint.
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).
In order to bring suit in a federal court, a plaintiff must establish that he has standing to
pursue his claims under Article III of the United States Constitution. E.M. v. N.Y.C. Dep’t of
Educ., 758 F.3d 442, 449 (2d Cir. 2014) “‘The irreducible constitutional minimum of standing’
derives from Article III, Section 2 of the U.S. Constitution, which limits federal judicial power to
‘cases’ and ‘controversies.’” Natural Resources Defense Council, Inc. v. U.S. Food & Drug
Admin., 710 F.3d 71, 79 (2d Cir. 2013) (quoting U.S. Const. art. III, § 2 and Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). “To establish that a case or controversy exists so as to
confer standing under Article III, a plaintiff must satisfy three elements: (a) the plaintiff must
suffer an ‘injury in fact,’ (b) that injury must be ‘fairly traceable’ to the challenged action, and
(c) the injury must be likely to be ‘redressed by a favorable decision’ of the federal court.” Id.
(citations omitted); see also Hollingsworth v. Perry, 570 U.S. ---, ---, 133 S. Ct. 2652, 2661
(2013) (Standing “‘requires the litigant to prove that he has suffered a concrete and particularized
injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a
favorable judicial decision.’ In other words . . . [the litigant] must seek a remedy for a personal
and tangible harm.” (internal citation omitted) (quoting Lujan, 540 U.S. at 560–61)). To have
standing to bring a Section 1983 action, a plaintiff must show that he was personally deprived of
rights or privileges guaranteed by the United States Constitution. See Collins v. W. Hartford
Police Dep’t, 324 F. App’x 137, 139 (2d Cir. 2009) (finding that plaintiff “has no standing to
challenge constitutional deprivations alleged to have been experienced by his mother — among
other things, the appointment of her conservator, the freezing of her accounts, and the taking of
her property” and had not adequately alleged that he personally had suffered a constitutional
injury (citing Allen v. Wright, 468 U.S. 737, 751 (1984))); Casino v. Feilding, No. 13-CV-5095,
2013 WL 5970694, at *4 (E.D.N.Y. Nov. 8, 2013) (dismissing Section 1983 claim brought by
wife for violations of husband’s civil rights, noting that “[a] party may not assert a civil rights
claim on behalf of another; each party must establish that he or she was personally deprived of
rights or privileges secured by the Constitution” (quoting McCloud v. Delaney, 677 F. Supp. 230,
232 (S.D.N.Y. 1988)) (internal quotation marks omitted)).
Mr. Nguyen has failed to show that he has suffered an injury in fact that is traceable to
the conduct of the Defendants in this action. The allegations in the Complaint involve Ms.
Nguyen’s interactions with Hunter College employees, including her encounter with Associate
Director Barry and two campus security officers. (Compl. 2.) Mr. Nguyen acknowledges that he
agreed to “ke[ep] watching on the ‘sideline’” while Ms. Nguyen confronted her teacher about the
grade. (Id.) The Complaint advances no theory by which Mr. Nguyen was harmed when Ms.
Nguyen received an allegedly incorrect grade, engaged with the campus security officers, or
received the criminal trespass warning not to enter Hunter College property without express
written permission. Mr. Nguyen has not identified any specific civil right or constitutional
interest of his that has been, or is in imminent danger of being, affected by Defendants’ conduct.
Since the allegations relate to alleged harms to Ms. Nguyen, Mr. Nguyen’s claims for relief
pursuant to Section 1983 and 1985(3) are dismissed for lack of standing.
To the extent Ms. Nguyen brings claims for damages against Milliken and Raab in their
official capacities as representatives of CUNY and Hunter College, such claims are barred by the
Eleventh Amendment. “The Second Circuit has decisively held that CUNY and its senior
colleges, like Hunter College, are ‘arms of the state,’ which are immune from suit under the
Eleventh Amendment.” Marino v. City Univ. of N.Y., 18 F. Supp. 3d 320, 329 (E.D.N.Y. 2014)
(citing Clissuras v. City Univ. of N.Y., 359 F.3d 79, 83 (2d Cir.) supplemented sub nom.
Clissuras v. City of Univ. of N.Y., 90 F. App’x 566 (2d Cir. 2004), and Jackson v. City Univ. of
N.Y., No. 05-CV-8712, 2006 WL 1751247, at *2 (S.D.N.Y. June 23, 2006)); see also Shibeshi v.
City Univ. of N.Y., 531 F. App’x 135, 135 (2d Cir. 2013) (holding claim against CUNY properly
dismissed as barred by the Eleventh Amendment); Ford v. Reynolds, 316 F.3d 351, 355–56
(holding that suit against CUNY officials barred by the Eleventh Amendment to the extent it was
brought against CUNY officials in their official capacity and was not seeking prospective
injunctive relief). “It is well settled that Congress did not abrogate the States’ sovereign
immunity by enacting § 1983 and New York has not waived its immunity” as to claims of this
nature. Marino, 18 F. Supp. 3d at 335 (citing Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d
However, under the principle enunciated in Ex Parte Young, a plaintiff may sue a state
official acting in his official capacity for prospective injunctive relief from violations of federal
law. See Ford, 316 F.3d at 354–55; Marino, 18 F. Supp. 3d at 329 (citing In re Deposit Ins.
Agency, 482 F.3d 612, 617 (2d Cir. 2007) and Ex parte Young, 209 U.S. 123 (1908)). Ms.
Nguyen appears to allege a claim for prospective injunctive relief against Milliken and Raab for
the correction of her grade. For the reasons discussed below, Ms. Nguyen has failed to show that
the incorrect grade has been posted in violation of federal law, and thus cannot state a claim
against Milliken and Raab in their official capacities for prospective injunctive relief in
correcting her grade.
Failure to state a claim
Section 1983 claims
Ms. Nguyen’s vague allegations that Associate Direct Collen Barry of Hunter College
and two campus security officers “knowingly and deliberately took away [Ms. Nguyen’s] First
Amendment, Fifth Amendment, and 14th [sic] Amendment rights among other violations,”
(Compl. 2), fails to state a claim under 42 U.S.C. § 1983. In order to sustain a claim for relief
under Section 1983, a plaintiff must allege (1) that the challenged conduct was “committed by a
person acting under color of state law,” and (2) 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 Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 678.
“Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
Ms. Nguyen fails to state a claim against Milliken, Raab and Carrillo. As a preliminary
matter, the Complaint contains no allegations relating to the conduct of Milliken or Raab, or
otherwise indicates that either Milliken or Raab personally had any involvement in either the (1)
incorrect grade, or (2) the incident on January 29, 2015 involving Barry and two campus security
officers. Because there are no allegations against either Defendants Milliken or Raab to show
that they were personally involved in any action against Ms. Nguyen, the Complaint is dismissed
as to Milliken and Raab in their individual capacities. Second, Ms. Nguyen has made no
showing that Carrillo was involved in any deprivation of her constitutional rights. Ms. Nguyen
has not made any allegation as to what involvement, if any, Carrillo had in the events on January
29, 2015 that resulted in the Criminal Trespass Warning and alleged deprivation of Ms.
Nguyen’s property. The Complaint alleges that Carrillo “committed fraud(s) by posting [Ms.
Nguyen’s] incorrect grade . . . on [the] CUNY system and informing [P]laintiff of her grade via
email.” (Compl. 2.) Ms. Nguyen has not alleged that she had any constitutional right to receive
a particular grade, or to have that grade posted on the CUNY system. Cf. Marino, 18 F. Supp. 3d
at 337–38 (noting that there is no constitutionally mandated procedure required for challenging
academic decisions such as a failing grade, and that the opportunity to challenge failing grade
before appellate committee in CUNY system was “more procedural safeguard than required by
the Constitution”). Furthermore, because Ms. Nguyen has failed to allege a deprivation of any
federal right in the posting of her grade in the CUNY system, she cannot seek prospective
injunctive relief against Milliken and Raab in their official capacities under Ex Parte Young. See
Dube, 900 F.2d at 595 (“[A] state official acting in his official capacity may be sued in a federal
forum to enjoin conduct that violates the federal Constitution, notwithstanding the Eleventh
Amendment bar.” (emphasis added) (citations omitted)).
As Ms. Nguyen has not stated facts that indicate that Carrillo or any other Defendant was
involved in the January 29, 2015 event, or that she was deprived of a constitutional right when
she received a lower-than-expected grade, her Section 1983 claim is dismissed for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Section 1985(3) claims
To make out a violation of Section 1985(3), a plaintiff “must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a citizen of the
United States.” Robinson v. Allstate Ins. Co., 508 F. App’x 7, 9 (2d Cir. 2013) (quoting United
Bhd. of Carpenters v. Scott, 463 U.S. 825, 828–29 (1983)) (internal quotation marks omitted).
With respect to the second element, a plaintiff must show that the conspiracy was motivated by
“some racial or perhaps otherwise class-based, invidious discriminatory animus . . . .” Id.
(quoting Britt v. Garcia, 457 F.2d 264, 270 n.4 (2d Cir. 2006)) (internal quotation omitted); see
also Posr v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir. 1999); Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Here, the Complaint does no
more than allege in a conclusory manner that Ms. Nguyen and Mr. Nguyen “discovered fraud
and conspiracy.” (Compl. 2.) Even affording the Complaint a liberal reading, it contains no
factual allegations that there was any agreement or meeting of the minds to achieve an unlawful
end. See Robinson, 508 F. App’x at 9 (citing Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003).
Furthermore, there is no factual basis on which to find that the alleged conspiracy was motivated
by invidiously discriminatory animus. Accordingly, any claims pursuant to Section 1985(3) are
also dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In light of Ms. Nguyen’s pro se status, the Court grants her leave to replead the
Complaint to correct the deficiencies noted above. The amended complaint must include a short,
plain statement of facts sufficient to support a plausible claim against any individual Defendant
listed in the amended complaint. Any amended complaint must be filed within 30 days of the
date of this Memorandum and Order. The amended complaint must be captioned “Amended
Complaint” and bear the same docket number as this Memorandum and Order. No summons
shall issue at this time and all further proceedings shall be stayed until Ms. Nguyen has complied
with this order. If Ms. Nguyen fails to file an amended complaint within 30 days, the instant
action shall be dismissed.
For the reason stated above, the Complaint is dismissed as to Thomas Nguyen for lack of
standing and as to Tiffany Nguyen for failure to state a claim against Defendants. 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).
MARGO K. BRODIE
United States District Judge
Dated: April 21, 2015
Brooklyn, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?