Davenport v. Selfhelp Community Services, Inc. et al

Filing 4

MEMORANDUM AND ORDER. The complaint, filed in forma pauperis, is dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B). The plaintiff is granted 30 days from the date of this Order to file an amended complaint as detailed above. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Ordered by Judge Ann M. Donnelly on 1/9/2018. (Greene, Donna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MEMORANDUM AND ORDER
17-CV-7524 (AMD)

RUSSELL DAVENPORT,
Plaintiff,

FfLED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

-againstSELFHELP COMMUNITY SERVICES, INC.;
TATYANA VASILYEVA,

*

JAN 0 9 2018

*

BROOKLYN OFFICE

Defendants.

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ANN M. DONNELLY, United States District Judge:
On December 22, 2017, the plaintiff Russell Davenport filed the instant pro se action
pursuant to 42 U .S.C. § 1983, alleging that the defendants, Selfhelp Community Services, Inc.
("Selfhelp") and Tatyana Vasilyeva ("Vasi lyeva"), violated hi s constitutional rights. The
plaintiffs request to proceed in forma pauperis is granted. For the reasons discussed below, the
complaint is dismissed. The plaintiff is granted leave to submit an amended complaint within 30
days of the date of this Order.

Background
The defendant Selfhelp is the plaintiffs court-appointed legal guardian. (ECF No. 1, at
3-4.) Selfhelp, in turn, appointed the defendant Vasilyeva as the plaintiffs legal guardian. (Id.)
The complaint alleges that on or about July 31 , 2015, Vasilyeva imprisoned the plaintiff in his
home by holding the door to the plaintiff s home closed; when the plainti ff forced the door open,
Vasilyeva kicked the plaintiff in his testicles. (Id.) The plaintiff went to the hospital for
treatment, and had pain in his scrotum for at least a month. (Id.) The plaintiff reported the
incident to Selfhelp and the New York Police Department but neither entity took any action.

(Id.) The plaintiff now seeks monetary damages for his pain and suffering, and punitive
damages. (Id. at 5.)

Standard of Review
At the pleadings stage of the proceeding, the court must assume the truth of "all wellpleaded, nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch Petroleum

Co., 621F.3d111, 124 (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

At!. 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. Ed. ofEduc., 631 F.3d 57, 63 (2d Cir. 2011) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Because the plaintiff is prose, his pleadings
should be held "to less stringent standards than formal pleadings drafted by lawyers" and the
court is required to read the plaintiff's prose complaint liberally. Erickson v. Pardus, 551 U.S.
89 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 -93 (2d Cir. 2008).
Under 28 U.S.C. § 1915(e)(2)(B), a district court must dismiss an informa pauperis
action when 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., 141F.3d434, 437
(2d Cir. 1998) (internal citation omitted).

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Discussion

In order to state a claim under Section 1983, a plaintiff must allege that "some person
acting under color of state law deprived him of a federal right. " Ahlers v. Rabinowitz, 684 F.3d
53, 60-61 (2d Cir. 2012); Cornejo v. Bell, 592 F.3d 121 , 127 (2d Cir. 2010). Private conduct, no
matter how discriminatory or wrongful, is generally beyond the reach of Section
1983. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations omitted).
Thus, for the plaintiff to succeed on his Section 1983 claim, he must first establish that the
conduct of the named defendants is "fairl y attributable to the State." Id. , Ciambriello v. County

ofNassau, 292 F.3d 307, 323 (2d Cir. 2002).
Here, defendant Vasilyeva is a private party and defendant Selthelp is a nonprofit
corporation that provides a variety of services to at-risk populations to enable them to live
independently. Nelson v. Seifhelp Community Services, Inc., No. 13 CV 5524, 20 14 WL
6850967, at *1 (S.D.N.Y. Dec. 4, 2014). Although the defendants were appointed by New York
State court to serve as the plaintiffs legal guardians, their appointment does not automatically
render them state actors. Storck v. Suffolk Cly. Dep 't ofSoc. Servs., 62 F. Supp. 2d 927, 94 1
(E.D.N. Y. 1999). " When considering the state action requirement of a court appointed
representative, courts focus on whether the duty of the person appointed runs to the state or the
individual client." Id. In this case, the defendants are not state actors because they "exercise
independent professional judgment in the interests of the cli ents that they represent," and their
duty runs to their individual clients, not to the state. Id. (neither the court-appointed law
guardians nor the defendants doctors are state actors for purposes of Section 1983).
Nonetheless, private actors who are not state actors may be liable under Section 1983 if

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they "willful[ly] participa[ted] in joint activity with the State or its agents" or "conspire[d] with a
state official to violate the plaintiffs constitutional rights." Young v. Suffolk Cnty., 922 F.Supp.2d
368, 385 (E.D.N.Y. 20 13) (internal quotations and citations omitted); see also Caldwell v. Myer,
No. 14 CV 5383, 2015 WL 428063, at *3 (E.D.N.Y. Jan. 30, 2015). To state a Section 1983
conspiracy claim, the plaintiff must allege: " (I) an agreement between a state actor and a 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." Gill v. Silver Inv 'rs Inc., No. 16 CV 3219 (LOH),
2016 WL 4099098, at *3 (E.D.N.Y. Aug. 2, 2016). The plaintiff has not made any such
allegations, and thus, has failed to state a claim for which relief may be granted. See id. at *3
(dismissing action where the plaintiffs fail to allege any facts that the defendants acted in concert
with state actors in furtherance of committing an unconstitutional act).
Leave to Amend

In light of the plaintiffs prose status, he is granted 30 days to file an amended
complaint. If the plaintiff elects to file an amended Section 1983 complaint, he must allege facts
showing the conduct of the named defendants is attributable to the state. Also, the amended
complaint must be captioned "Amended Complaint" and bear the same docket number as this
Order. No summons will issue at this time and all further proceedings will be stayed for 30 days.
If the plaintiff decides not to file an amended complaint, or fails to do so in a timely manner, the

action will be dismissed.
Conclusion

Accordingly, the complaint, filed informa pauperis, is dismissed for failure to state a
claim. 28 U.S.C. § 1915(e)(2)(B). The plaintiff is granted 30 days from the date of this Order to

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file an amended complaint as detailed above. The Court certifies pursuant to 28 U.S.C. § 1915

(a)(3) that any appeal from this order would not be taken in good faith and therefore informa
pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438,
444-45(1962).
SO ORDERED

s/Ann M. Donnelly
ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York
January 9,2018