Graham v. Richmond University Medical Hospital et al

Filing 6

MEMORANDUM AND ORDER: The Court grants 2 Motion for Leave to Proceed in forma pauperis solely for the purpose of its memorandum and order. The Court denies 5 Motion to Appoint Counsel. For the reasons stated in the attached opinion, P laintiff's claims are dismissed for failure to state a claim upon which relief may be granted. 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 the purpose of any appeal. The Clerk of the Court is respectfully requested to dismiss this case. Ordered by Judge Pamela K. Chen on 5/8/2015. (Chiang, May)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JESSICA C. GRAHAM,
Plaintiff,

NOT FOR PUBLICATION

-againstMEMORANDUM & ORDER
15-CV-889 (PKC)

RICHMOND UNIVERSITY MEDICAL
HOSPITAL; RICHMOND UNIVERSITY
MEDICAL HOSPITAL EMS
DEPARTMENT; LYNN McCARTHY;
JAMES CANECCHIA; GISEL CUBERO;
KIM TRIOLO; ISA-NGOZI; KEVIN
DIMAURO; FRANK FAZIO;
Defendants.
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PAMELA K. CHEN, United States District Judge:

On February 17, 2015, plaintiff Jessica C. Graham filed this pro se action alleging that
police officers and emergency medical technicians (“EMT”) violated her constitutional rights
when they involuntary transported her to Richmond University Medical Hospital where she
allegedly received involuntary treatment. 1 Plaintiff alleges jurisdiction principally pursuant to 42
U.S.C. § 1983. Plaintiff’s request to proceed in forma pauperis is granted solely for the purpose
of this memorandum and order. Plaintiff’s motion to appoint counsel is denied. For the reasons
set forth below, this action is dismissed for failure to state a claim upon which relief may be
granted.

1

By order dated April 30, 2015, plaintiff was permanently enjoined and restrained from
filing any new in forma pauperis actions in the United States District Court for the Eastern
District of New York without first obtaining leave of the Court. Graham v. Interpersonal
Development et al., 15 CV 459 (PKC) (ECF. Nos. 9, 10). The Court notes that the instant action
was filed before plaintiff was enjoined.

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BACKGROUND
This is the ninth action that plaintiff has filed since October 2, 2014. See Graham v.
Quirk, 14 CV 5815 (E.D.N.Y. Dec. 8, 2014) (dismissing child custody-related claims and
allowing claims for false arrest and excessive force to proceed); Graham v. Yazdani et al., 14 CV
6020 (E.D.N.Y. Oct. 31, 2014) (dismissing action for lack of subject matter jurisdiction);
Graham v. Rawley, 14 CV 6022 (E.D.N.Y. Oct. 27, 2014) (dismissing child custody-related
claims and transferring remaining claims to the United States District Court for the District of
New Jersey); Graham v. Quirk, 14 CV 6676 (E.D.N.Y. Dec. 22, 2014) (dismissing plaintiff’s
claims relating to the custody of her child for lack of subject matter jurisdiction); Graham v.
Distasio, 14 CV 6677 (E.D.N.Y. Jan. 23, 2015) (dismissing amended complaint for failure to
state a claim); Graham v. Criminal Court of the City of NY et al., 15 CV 337 (E.D.N.Y. Feb. 2,
2015) (dismissing all claims and warning plaintiff that if she continued to file frivolous
complaints based on the same events as to which the Court had previously ruled, she could face
restrictions on her future access to the Court); Graham v. Family Court of the State of New York,
15 CV 419 (E.D.N.Y. Feb. 25, 2015) (dismissing complaint for lack of subject matter
jurisdiction); Graham v. Interpersonal Development et al., 15 CV 459 (E.D.N.Y.) (by order
dated March 12, 2015, dismissing complaint for lack of subject matter jurisdiction, and by order
dated April 30, 2015, enjoining and restraining plaintiff from filing any new in forma pauperis
actions in the United States District Court for the Eastern District of New York without first
obtaining leave of the Court).
In the instant action, plaintiff alleges that on October 4, 2013, police officers, along with
emergency medical technicians, entered her home and transported her to Richmond University

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Medical Hospital where she received involuntary medical treatment. 2 Plaintiff seeks to have this
Court, inter alia, order the Federal Bureau of Investigation to conduct an investigation; order
Richmond University Medical Center to “eliminate” the record of plaintiff’s hospitalization, as it
“may deny the Plaintiff’s right to bear arms in the future . . . ”; and order defendants to pay
monetary damages. Compl at ¶ IV.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action “(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.” An action is “frivolous” when either: (1) “the ‘factual contentions are clearly
baseless,’ such as when allegations are the product of delusion or fantasy”; or (2) “the claim is
‘based on an indisputably meritless legal theory.’” Livingston v. Adirondack Beverage Co., 141
F.3d 434, 437 (2d Cir. 1998) (internal citation omitted).
Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of
“all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
A complaint must plead sufficient facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is axiomatic that pro se complaints are
held to less stringent standards than pleadings drafted by attorneys, and the Court is required to
read the Plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it
suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9 (1980);

2

The Court notes that plaintiff brings this action solely against the hospital and defendants
employed by the hospital.

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Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191–93 (2d Cir. 2008).
A plaintiff seeking to bring a lawsuit in federal court must establish that the Court has
subject matter jurisdiction over the action. See, e.g., Rene v. Citibank NA, 32 F. Supp. 2d 539,
541–42 (E.D.N.Y. 1999). “[F]ailure of subject matter jurisdiction is not waivable and may be
raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking,
the action must be dismissed.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697,
700-01 (2d Cir. 2000) (citations omitted); see Fed. R. Civ. P. 12(h)(3).
DISCUSSION
Here, plaintiff names as defendants, Richmond University Medical Hospital, Richmond
University Medical Hospital EMS Department, defendants McCarthy and Canecchia, who are
identified by plaintiff as EMTs employed by Richmond University Medical Hospital, defendant
Cubero, a physician employed by Richmond University Medical Hospital, and defendants Triolo,
Isa-Ngozi, Dimauro, and Fazio, all of whom are identified by plaintiff as nurses employed by
Richmond University Medical Hospital.
In order to state a § 1983 claim, 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)); see also Rehberg v. Paulk, --- U.S. ---, 132 S. Ct. 1497,
1501–02 (2012). Section 1983 does not create any independent substantive right; but rather is a
vehicle to “redress . . . the deprivation of [federal] rights established elsewhere.” Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999).

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Moreover, private conduct, no matter how discriminatory or wrongful, is generally
beyond the reach of § 1983. Brentwood Academy v. Tennessee, 531 U.S. 288, 305–06 (2001);
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Morris v. Katz, No. 11 CV
3556, 2011 WL 3918965, at *6 (E.D.N.Y. Sept. 4, 2011). Here, Richmond University Medical
Hospital is a private corporation, and the remaining defendants are all private medical
professionals employed by the hospital. See Kia P. v. McIntyre, 235 F.3d 749, 755–56 (2d Cir.
2000) (private hospital was not a state or municipal facility and thus was not liable pursuant to §
1983, unless it was acting as an instrumentality of the state); Mallgren v. Burkholder, et al., No.
14 CV 2189, 2014 WL 3845223, at *6 (E.D.N.Y. Aug. 5, 2014) (dismissing claims against
Richmond University Medical Center and its unidentified staff members because they are not
state actors).
Private individuals who are not state actors may nonetheless be liable under Section 1983
if they have conspired with or engaged in joint activity with state actors. See Filarsky v. Delia,
132 S.Ct. 1657, 1661–62 (2012); Briscoe v. LaHue, 460 U.S. 325, 330 n.7 (1983); see also
Abdullahi v. Pfizer, Inc., 562 F.3d 163, 188 (2d Cir. 2009) (“Under § 1983, state action may be
found when there is such a close nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of the State itself.” (quoting Brentwood
Acad., 531 U.S. at 295 (2001)) (internal quotation marks omitted)).
To the extent that plaintiff seeks to argue that defendants conspired with or engaged in
joint activity with “law enforcement,” her claim fails. In order to state a Section 1983 conspiracy
claim against a private entity, plaintiff must do more than plead simply and in conclusory fashion
that the defendant “conspired” with state actors. Ciambriello v. County of Nassau, 292 F.3d 307,
324 (2d Cir. 2002). Instead, plaintiff must allege: “(1) an agreement between a state actor and a

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private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pacicca v. Stead, 456 F. App’x. 9, 12 (2d Cir.
2011) (quoting Ciambriello, 292 F.3d at 324–25); see also Faison v. Maccarone, No. 11 CV
0137, 2012 WL 681812, at *5 (E.D.N.Y. Mar. 1, 2012). Here, plaintiff fails to allege any facts
to show that defendants acted in concert with “law enforcement” in furtherance of committing an
unconstitutional act. See, e.g. Goonewardena v. N. Shore Long Island Jewish Health Sys., No.
11 CV 2456, 2014 WL 1271197, at *11 n.14 (E.D.N.Y. Mar. 26, 2014) (finding that Zucker
Hillside Hospital is a private hospital and plaintiff failed to plead any facts suggesting that the
hospital acted in concert with state actors).
Whereas ordinarily the Court would allow plaintiff an opportunity to amend her
complaint, see Cruz v. Gomez, 202 F.3d 593, 597–98 (2d Cir. 2000), it declines to do so here
because it is clear from plaintiff’s submissions that there is no possibility of a plausible § 1983
claim against these defendants. Therefore, any attempt to amend the complaint would be futile.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (denying leave to amend a pro se complaint
where amendment would be futile).
CONCLUSION
Plaintiff’s claims are dismissed for failure to state a claim upon which relief may be
granted. 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
the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

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SO ORDERED.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: May 8, 2015
Brooklyn, New York

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