Brown v. City of New York et al.

Filing 8

MEMORANDUM AND ORDER: Plaintiff's motion to proceed in forma pauperis 2 is granted. As set forth in the Court's April 12, 2018 Memorandum of Decision and Order, Plaintiff's complaint in 17-CV-5836 is dismissed as duplicative of the complaint in 17-CV-2281. Any claims raised in 17-CV-2281 related to the May 29, 2016 incident are also dismissed as duplicative of Plaintiffs case in 16-CV-6244. As to the remaining claims, the complaint in 17-CV-2281 is dismissed for failure to sta te a claim pursuant to 28 U.S.C. section 1915(e)(2)(B)(ii). The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se Plaintiff and to close the case. Ordered by Judge LaShann DeArcy Hall on 4/12/2018. (Valentin, Winnethka)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
MARGIE BROWN,

NOT FOR PUBLICATION
Plaintiff,

-against-

MEMORANDUM
AND ORDER

CITY OF NEW YORK,
17-CV-02281 (LDH)(ST)
Defendant.
X
MARGIE BROWN,
Plaintiff,
-against-

17-CV-5836 (LDH)(ST)

CITY OF NEW YORK, et al.,
Defendants.
_____________________________________X
LASHANN DEARCY HALL, United States District Judge:
Pro se Plaintiff Margie Brown brings this in forma pauperis action against the City of
New York, seeking damages for the alleged dangerous conditions and negligent treatment she
has received while housed at a local New York City shelter for homeless citizens. She also
alleges that despite multiple attempts, she has been unable to obtain her medical records from the
New York City Department of Homeless Services (“DHS”). The Court grants Plaintiff’s request
to proceed in forma pauperis pursuant to 28 U.S.C. ' 1915, but dismisses the complaints as set
forth below.
I.

Standard of Review
Under 28 U.S.C. ' 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
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action where it is satisfied that the action is “(i) 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.” See 28 U.S.C. ' 1915(e)(2)(B). The Court construes Plaintiff’s pleadings
liberally because Plaintiff is pro se and alleges civil rights violations. See Erickson v. Pardus,
551 U.S. 89, 94 (2007); Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004). If a liberal reading
of the complaint “gives any indication that a valid claim might be stated,” the Court must grant
leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Rule 8 of the Federal Rules of Civil Procedure provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal, 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 will
be considered plausible on its face “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “detailed factual allegations” are not
required, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). Similarly, a
complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

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II.

Discussion
A. Duplicative Claims
1. Plaintiff’s Claims in Brown v. City of New York, 17-CV-5836 (LDH)(ST)
On April 10, 2017, Plaintiff filed the complaint in docket number 17-CV-2281

(LDH)(ST) in this Court. On August 16, 2017, Plaintiff filed a second complaint in the Southern
District of New York. See Compl., Brown v. City of New York, No. 17-CV-5836, ECF No. 2
(E.D.N.Y.). By Order dated September 21, 2017, the Southern District of New York transferred
that action to this Court upon finding that such a transfer was appropriate “in the interest of
justice” as “Plaintiff filed a substantially similar complaint in the Eastern District of New York,
and that action is pending.” See Transfer Order, Brown v. City of New York, No. 17-CV-5836,
ECF No. 3 (E.D.N.Y.). The Court has compared the two complaints and agrees with the
Southern District’s assessment that the complaints are substantially similar. Accordingly, the
second-filed complaint under docket number 17-CV-5836 (LDH)(ST) is dismissed as duplicative
of the complaint in 17-CV-2281 (LDH)(ST) pursuant to the Court’s general authority to manage
its docket. Curtis v. Citibank, N.A., 226 F. 3d 133, 138 (2d Cir. 2000) (“As part of its general
power to administer its docket, a district court may stay or dismiss a suit that is duplicative of
another federal court suit.”).
2. Plaintiff’s Claims Related to Brown v. City of New York, 16-CV-6244
(LDH)(ST)
Plaintiff also previously filed an action against the City of New York on November 4,
2016, under docket number 16-CV-6244 (LDH)(ST). In the amended complaint filed in 16-CV6244 (LDH)(ST), Plaintiff asserted claims pursuant to 42 U.S.C. § 1983 and alleged that her
detention at 1424 Herkimer Street and/or transport to Interfaith Hospital on May 29, 2016, by
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defendant police and fire department officers violated her constitutional rights. The parties in
16-cv-6244 (LDH)(ST) ultimately reached a settlement and, on March 20, 2018, they filed a
stipulation of dismissal. To the extent that the complaint in 17-CV-2281 (LDH)(ST) raises the
same claims at issue in 16-CV-6244 (LDH)(ST), those claims are dismissed. (See Compl. 6-7,
No. 17-cv-2281, ECF No. 1.); see also Blake v. Bentsen, No. 95 CV 2227 (SJ), 1995 WL
428694, at *2 (E.D.N.Y. July 11, 1995) (“[A]n IFP complaint that merely repeats pending or
previously litigated claims may be considered abusive and dismissed under the authority of
section 1915([e]).” (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)).
B. Plaintiff’s Remaining Claims
1. Summary of Allegations
With regard to Plaintiff’s remaining allegations filed under docket 17-CV-2281
(LDH)(ST), the complaint is very difficult to follow because it does not assert formal claims and
it is replete with disconnected facts and references to various state and federal statutes.
However, it appears that the gravamen of Plaintiff’s complaint is that the Defendant has failed to
protect her from alleged criminal activity at the homeless shelter where she resides, 200 Tillary
Street in Brooklyn, New York (“200 Tillary Street”), which is run by the DHS. (See Compl. 57.) After a liberal review of the complaint, the Court places Plaintiff’s allegations into two
categories: (1) allegations related to a request for Plaintiff’s mental health records and diagnosis
from DHS; and (2) allegations related to a request for a safety transfer from 200 Tillary Street
based on purported dangerous conditions.
As to the first category, Plaintiff alleges that she has asked DHS for her mental health
records for eighteen months but has yet to receive them. (Id. at 5.) Plaintiff alleges that these

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records are important because she wishes to be transferred from 200 Tillary Street, a “shelter for
the severely [m]entally [i]ll” who are not properly monitored by the staff, to a general population
shelter. (Id.) She states that she does not have a documented psychological illness, but that she
has been housed at shelters for mentally ill persons for eighteen months. (Id.)
The balance of Plaintiff’s complaint concerns alleged “abuse harassment threats
discrimination sexual harassment and being in fear of her safety” at 200 Tillary Street and the
“negligence of [the] Tillary staff.” (Id. at 6.) Plaintiff alleges that she has experienced thirteen
incidents affecting her safety in the shelter over the past six months; her twenty complaints to
311 have gone unanswered; and her seventy complaints to shelter staff have not resulted in the
relief she seeks. (Id. at 5-6.) Plaintiff does not catalogue all thirteen incidents that have
allegedly affected her safety, but, in describing some, she states that: she has been attacked five
times by other residents and threatened on other occasions; someone removed her scarf and wig
and cut her hair on February 20, 2017; she was awakened on October 2, 2016 by a “documented
psych client standing over her and touching her”; in October 2016, someone poured blood on her
bed while she was sleeping; someone stuck a needle in her foot while she was sleeping on
September 21, 2016; and, clients who have threatened her have been moved into the same room
as her or nearby. (Id.)
Plaintiff seeks to be placed in “safe suitable housing” and $1,500,000 in damages.
2. Section 1983
The Court liberally construes the complaint as alleging a violation of 42 U.S.C. § 1983 as
the only possible basis for federal court jurisdiction over Plaintiff’s complaint. Section 1983 “is
not itself a source of substantive rights, but a method for vindicating federal rights elsewhere

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conferred by those parts of the United States Constitution and federal statutes that it describes.”
Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for seeking redress.
42 U.S.C. § 1983. In order to maintain a § 1983 action, a plaintiff must allege both that the
conduct complained of was “committed by a person acting under color of state law” and
“deprived a person of rights, privileges or immunities secured by the Constitution or laws of the
United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Moreover, he must allege
the direct or personal involvement of each of the named defendants in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010); Farrell v. Burke, 449 F.3d 470,
484 (2d Cir. 2006) (“It is well-settled in this Circuit that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”).
Even assuming arguendo that the City of New York were a proper party to this § 1983
action,1 the complaint fails to state a claim because she has failed to allege the violation of a
constitutional right. First, Plaintiff does not have a federal right to obtain a copy of her medical
records from DHS; rather, Plaintiff’s claim arises under state law, specifically, New York’s
Freedom of Information Law (“FOIL”). See N.Y. Pub. Off. Law §§ 84-90. Thus, DHS’s alleged
failure to respond to Plaintiff’s requests for her medical records cannot form the basis of a claim

1 Plaintiff has named the City of New York as a defendant to this action but she has failed to allege any facts that
would support an inference that an official policy or custom of the City of New York caused a violation of her
federally protected rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (Congress did not intend
municipalities to be held liable under Section 1983, “unless action pursuant to official municipal policy of some
nature caused a constitutional tort”).

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under § 1983. See Collins v. City of N.Y., No. 05-CV-5595, 2007 WL 2455142, at *5 (E.D.N.Y.
Aug. 23, 2007) (finding plaintiff failed to state a § 1983 claim related to a FOIL request because
“[i]t is well settled that violations of state law are not actionable under § 1983”) (citing Pollnow
v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985)). FOIL claims which are not resolved by the state
or city agency should be brought in the New York State Supreme Court pursuant to Article 78 of
the New York Civil Practice Law and Rules. Id.
Second, Plaintiff does not have a federal right to a particular housing assignment. Jenkins
v. New York City Dep’t of Homeless Servs., 643 F. Supp. 2d 507, 512-514 (S.D.N.Y. 2009)
(finding homeless citizen who sought placement in general shelter population because he
disavowed his mental health diagnosis failed to state a due process claim because a homeless
person does not have a liberty or property right to placement in a particular type of shelter)
(citing New York State Office of Temporary and Disability Assistance Implementing Directive
94 ADM-20(V)(D)(3) (“Homeless persons do not have the right to choose their own temporary
placements.”)).
Third, although the Court is sympathetic to the difficult conditions under which Plaintiff
resides, her claim concerning the violence at the hands of other residents of 200 Tillary does not
state a constitutional violation. Liberally construing the pleading, Plaintiff complains that the
shelter employees and other City employees to whom she has complained failed to provide care
and protection as required under the Due Process Clause of the Fourteenth Amendment. This
claim is one invoking the substantive component of the Due Process Clause because rather than
claim that the Defendant denied her protection without the proper procedural safeguards,
Plaintiff alleges that the Defendant was categorically obligated to protect her in these

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circumstances. Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (noting that the Due
Process Clause has “a procedural component protecting against the ‘denial of fundamental
procedural fairness’ as well as a substantive component guarding the individual against ‘the
exercise of power without any reasonable justification in the service of a legitimate
governmental objective’” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)).
While it is true that in limited circumstances, the Constitution imposes upon the State
affirmative duties of care and protection with respect to particular individuals—for example,
incarcerated inmates or involuntarily committed mental patients—Plaintiff’s complaint does not
allege such a situation. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–
200 (1989) (“when the State takes a person into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding duty to assume some responsibility for his
safety and general well-being”). In fact, Plaintiff is free to leave the shelter. Carter v. City of
New York, 2014 WL 4953641, at *3 (S.D.N.Y. Sept. 30, 2014) (dismissing § 1983 claim where
the plaintiff “was not in custody” and did not “allege that the City restricted his freedom of
movement in any way”). Furthermore, Plaintiff has not alleged any exceptional circumstances,
such as a “special relationship” or state-created danger, that would give rise to a constitutional
obligation. Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citing
DeShaney, 489 U.S. at 201) (“in exceptional circumstances, a governmental entity may have a
constitutional obligation to provide . . . protection, either because of a special relationship with
an individual, . . . or because the governmental entity itself has created or increased the danger to
the individual.”).

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The complaint also fails to allege any affirmative conduct on the part of the employees of
200 Tillary Street which resulted in harm to Plaintiff. Lombardi, 485 F.3d at 79 (“[o]nly an
affirmative act can amount to a violation of substantive due process” and “[i]t is not enough to
allege that a government actor failed to protect an individual from a known danger of bodily
harm or failed to warn the individual of that danger”). Plaintiff alleges that the shelter
employees failed to act and were negligent in their operation of the shelter, but this is not
enough. Pena v. DePrisco, 432 F.3d 98, 110 (2d Cir. 2005) (“A failure to interfere when
misconduct takes place, and no more, is not sufficient to amount to a state created danger.”)
(emphasis in original). Thus, Plaintiff’s § 1983 claim that City employees failed to shield her
from private violence at the shelter also fails to state a claim and is dismissed. 28 U.S.C. §
1915(e)(2)(B)(ii); DeShaney, 489 U.S. at 196 (the function of the Due Process clause is “to
protect the people from the State, not to ensure that the State protect[s] them from each other.”).
III.

Conclusion
Accordingly, the complaint in Brown v. City of New York, 17-CV-5836 is dismissed as

duplicative of the complaint in Brown v. City of New York, 17-CV-2281 (LDH)(ST). As to
Brown v. City of New York, 17-CV-2281 (LDH)(ST), Plaintiff’s claims regarding the incident
that occurred on May 29, 2016 are dismissed as duplicative of the claims in Brown v. City of
New York, 16-CV-6244 (LDH)(ST). With regard to Plaintiff’s remaining claims, the Court is
sympathetic to Plaintiff’s frustration in seeking reasonable safety at a homeless shelter, however,
her complaint does not support relief under federal law and is dismissed for failure to state a
claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and

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therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United
States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
/s/ LDH
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
April 12, 2018

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