Smith v. Ebanks et al

Filing 82

MEMORANDUM & ORDER: Roc Nation and Reform Alliance's motions to dismiss are granted, and all remaining claims are dismissed sua sponte. All such dismissals are with prejudice. The Clerk of Court is respectfully directed to close the case. Ordered by Judge Eric R. Komitee on 3/22/2024. (PMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
AHTWANA MARIE SMITH,
Plaintiff,
-against-

MEMORANDUM & ORDER
22-cv-6193(EK)(LB)

LAKUAN EBANKS, KAREEM EBANKS, NATASHA
BLANFORD, MICHELLE SMALLS, MENDEECEE
HARRIS, DAMON DASH, ROBERT WILLIAMS,
ONIKA MARAJ, SEAN COMBS, ROC NATION
LLC, and REFORM ALLIANCE,
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Ahtwana Smith filed this suit against eleven
individuals and two private entities, Roc Nation LLC and Reform
Alliance.

She has since amended her form complaint three times.

Proceeding pro se, she asserts claims under 42 U.S.C. § 1983 for
violations of her First, Fourth, Fifth, Eighth, and Fourteenth
Amendment rights, allegedly stemming from cyberstalking and
harassment.

She also asserts a claim for human trafficking and

state law tort claims including defamation, slander, intentional
infliction of emotional distress, and negligence.
The two entity defendants have moved to dismiss her
claims against them for lack of jurisdiction and failure to
state a claim.

For the reasons that follow, the motions to

dismiss for failure to state a claim are granted.

In addition,

Smith’s remaining claims are dismissed sua sponte.
I.
A.

Background

Factual Allegations
Despite having been amended several times, the

complaint remains largely devoid of specifics concerning who —
that is, which defendant — did what, let alone when or how.

The

complaint is similarly opaque as to which claims are being
asserted against which defendants.
Smith does allege that “Damon Dash and Michelle Smalls
have been stalking me for almost a decade.”
Complaint (“TAC”), ECF No. 70, at 8. 1

Third Amended

She writes that a non-

party, Carlton Roper, enlisted the “help of Robert Williams and
his music and social media” to make “cyberthreats.”

Id.

“Roper

came up with the idea to compare me to 2pac [Shakur,
presumably]” and two other individuals, as well as “anyone else
he can come up with while cyberstalking me and everyone else on
my social media friends’ post.”

Id.

Smith asserts that defendant Williams — known
professionally as Meek Mill — “sexual abuse [sic] me through his
lyrics” “on his 2018 Championships album,” id. at 12, though no
specific lyrics are recited in the complaint.

Lakuan Ebanks

Citations to the complaint refer to ECF pagination rather than the
complaint’s native page numbers.
1

2

stalked her family “due to a termination of pregnancy I received
upsetting him.”

Id. at 11.

Kareem Ebanks is alleged to be “a

sex predator and human trafficker” who “threatened . . . that he
would post pictures of me that he obtained without my consent”;
he also “conspired with” defendant Harris and others “to kill
me” at the behest of “Roper and Damon Dash.”

Id.

Smith alleges

that she has been subject to “constant assassination attempts.”
Id. at 10.

The complaint also alleges that Smith’s nephew,

Tamel Dixon, was “lured to California in February of 2019” by
Williams, Dash, and others, resulting (in ways left unexplained)
in Dixon’s death in October 2019.

Id. at 12.

The complaint refers to the entity defendants only
sparingly.

“Meek Mill [is] a Roc Nation artist” and also the

“chairman of Reform Alliance.”

Id.

Apart from that, the TAC

does not explicitly attribute any specific conduct to Roc
Nation, Reform Alliance, or their agents.
Smith checked a box on the form complaint indicating
that she is “bringing suit against” certain “state or local
officials,” id. at 7, but she does not say who they are.

The

entity defendants are said to be “corporation[s] act[ing] under
color of state law by contracting to perform a government
function.”

Id.

But the TAC makes no allegation about what that

government function is.

3

Smith alleges that as a result of the defendants'
actions, she has suffered from “severe mental anguish, severe
emotional distress,” and “constant breakouts” on her skin.
at 10.

She refers to the “labor trafficking of my son” and the

“numerous attempts to take the life of family members.”
requests $350 million in damages.
B.

Id.

She

Id.

Selected Procedural History
Although this case has been pending since October

2022, Smith has not filed proof that she served process on four
of the individual defendants: Michelle Smalls, ECF No. 50
(summons returned unexecuted), Mendeecee Harris, ECF No. 54
(incomplete proof of service), Onika Maraj, ECF No. 49 (summons
returned unexecuted), and Sean Combs. ECF No. 52 (incomplete
proof of service).
The court has permitted Smith to amend her complaint
three times, most recently to add factual content supporting her
claims following a pre-motion conference on the defendants’
motions to dismiss.

ECF Nos. 12, 20, 70.

Read liberally, the

operative complaint alleges claims under Section 1983; federal
human trafficking claims pursuant to 18 U.S.C. § 1595; and
various state-law tort claims against all defendants.
II.

Legal Standard

On a motion to dismiss, “the court’s task is to assess
the legal feasibility of the complaint.”
4

Lynch v. City of New

York, 952 F.3d 67, 75 (2d Cir. 2020).

In so doing, the court

“must take the facts alleged in the complaint as true, drawing
all reasonable inferences in [the plaintiff's] favor.”

In re

NYSE Specialists Sec. Litig., 503 F.3d 89, 91 (2d Cir. 2007).
Pro se complaints are “held to less stringent standards” than
pleadings drafted by attorneys, and the court will read a pro se
complaint liberally and interpret it as raising the strongest
arguments it suggests.

Erickson v. Pardus, 551 U.S. 89, 94

(2007); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008).
Still, a pro se plaintiff is not exempt from
“compliance with relevant rules of procedural and substantive
law.”

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

Thus,

to survive a motion to dismiss, the 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).
“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.”
2011).

Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.

Courts “are not bound to accept as true a legal

conclusion couched as a factual allegation,” and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
5

conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009).
Furthermore, “district courts may dismiss a frivolous
complaint sua sponte even when the plaintiff has paid the
required filing fee.”

Fitzgerald v. First East Seventh Street

Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000).

A complaint

“is frivolous where it lacks an arguable basis either in law or
in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).
III. Discussion
None of Smith’s Section 1983 claims are viable.

Among

other shortcomings, she does not allege that any defendant is a
state actor.

Her remaining federal and state claims lack an

arguable basis in law or fact, either because they are not
legally cognizable claims or because she fails to plead adequate
facts in support.
A.

Section 1983 Claims
The complaint appears to assert claims under Section

1983 against all defendants.

TAC at 7, 12. 2

But it fails to

state a Section 1983 claim upon which relief may be granted.

Defendants Reform Alliance and Roc Nation LLC have moved to dismiss
the claims against them for lack of subject matter jurisdiction. But the
court has federal question jurisdiction over Smith’s claims pursuant to
Section 1983, regardless of whether they adequately allege state action and
other required elements. TAC at 7; 28 U.S.C. § 1331; see Chan Ah Wah v. HSBS
Bank PLC, No. 13-CV-4789 (JPO), 2014 WL 2453304, at *2 (S.D.N.Y. June 2,
2014) (“Federal courts retain jurisdiction to dismiss cases even when the
federal claims in those cases are not plausibly pleaded.”).
2

6

Smith makes no non-frivolous, non-conclusory allegations that
any defendant is a state actor.

Private individuals and

entities are not generally amenable to suit under Section 1983,
which provides a remedy for violations of constitutional rights
by state actors.

See, e.g., Am. Mfrs. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999) (noting the Court’s “repeated insistence” in
Section 1983 cases that “the party charged with the deprivation
must be a person who may fairly be said to be a state actor”). 3
In relatively rare circumstances, actions by private
individuals or entities may give rise to liability under Section
1983.

“Conduct that is formally ‘private’ may become so

entwined with governmental policies or so impregnated with
governmental character that it can be regarded as governmental
action.”

Rendell-Baker v. Kohn, 457 U.S. 830, 847 (1982).

Here, however, the complaint includes only the bare recitation
that “when a corporation acts under color of state law by
contracting to perform a government function they are treated as
a government entity.”

TAC at 12.

Smith has therefore failed to

adequately allege any claims under Section 1983.
B.

Human and Labor Trafficking Claims
Smith also alleges a claim for “human trafficking

labor trafficking.”

TAC at 12.

I construe this (generously in

Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
3

7

light of the plaintiff’s pro se status) as brought pursuant to
18 U.S.C. § 1595.

That statute sets out the civil liability

provision of the Trafficking Victims Protection Reauthorization
Act of 2008.

See Walia v. Veritas Healthcare Solutions, L.L.C.,

No. 13-CV-6935, 2015 WL 4743542, at *3 (S.D.N.Y. Aug. 11, 2015)
(construing pro se claims for human trafficking as claims under
the TVPRA). 4

Such claims must allege that the defendant

“knowingly benefit, financially or by receiving anything of
value,” from participating in a trafficking venture.

18 U.S.C.

§ 1595(a); S.J. V. Choice Hotels Int’l, Inc., 473 F. Supp. 3d
147, 152-53 (E.D.N.Y. 2020).
Here, the complaint does not adequately allege the
existence of a trafficking venture, nor any facts suggesting the
defendants benefited from one.

Smith alleges that her nephew

was “lured to California in February of 2019” but fails to
explain how or for what trafficking-related purpose.
C.

TAC at 12.

State Law Claims
Smith’s complaint alleges the following claims under

state law: “vicarious liability,” “recklessness,” intentional
infliction of emotional distress,” “intimidation,” “cyber
stalking,” “defamation of character,” and “slander.”

TAC at 12.

4 Civil liability under this statute was created by the TVPRA.
See
Velez v. Sanchez, 693 F.3d 308, 324 (2d Cir. 2012). Although Smith “did not
raise claims under the TVPRA in [her] amended complaint, the failure in a
complaint to cite a statute, or cite the correct one, in no way affects the
merits of a claim, because factual allegations alone are what matters.” Id.

8

Several of these claims are not legally cognizable
causes of action.
of action.”

Vicarious liability “is not a separate cause

Zalt v. Wells Fargo Home Mortg., No. 8-CV-11225,

2010 WL 3026536, at *2 n.7 (S.D.N.Y. Aug. 2, 2010) (citing
Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251,
257-58 (2008)).

Neither federal nor New York law recognizes a

private cause of action for stalking.

Cain v. Christine Valmy

Int’l Sch. Of Esthetics, Skin Care, & Makeup, 216 F. Supp. 3d
328, (S.D.N.Y. 2016); Di Pompo v. Ruggiero, No. 17-CV-8077, 2018
WL 5045339, at *4 (S.D.N.Y. Oct. 17, 2018).

And the court is

unaware of a standalone common law or statutory cause of action
for “intimidation” or “recklessness” under New York or federal
law.
Smith’s three remaining claims are for defamation,
slander, and intentional infliction of emotional distress.
Under New York law, the elements of oral defamation (i.e.
slander) are: “(i) a defamatory statement of fact, (ii) that is
false, (iii) published to a third party, (iv) of and concerning
the plaintiff, (v) made with the applicable level of fault on
the part of the speaker, (vi) either causing special harm or
constituting slander per se, and (vii) not protected by
privilege.”

Sleepy's LLC v. Select Comfort Wholesale Corp., 909

F.3d 519, 528 (2d Cir. 2018).

Written defamation (i.e. libel)

requires the same elements, but as to a “written defamatory
9

statement of fact.”

Celle v. Filipino Report Enters. Inc., 209

F.3d 163, 176 (2d Cir. 2000).

“A defamation claim is only

sufficient if it adequately identifies the purported
communication, and an indication of who made the communication,
when it was made, and to whom it was communicated.”

Thai v.

Cayre Group, Ltd., 726 F. Supp. 2d 323, 329 (S.D.N.Y. 2010).
Smith’s complaint does not adequately identify a
defamatory statement.

She alleges that “Michelle Smalls thought

it [would] be a good look for her to take chapters out of my
life to use for her book,” but does not explain what Smalls
wrote, why it was false, or how it harmed her.

TAC at 8.

She

alleges that “Carlton Roper came up with the idea to compare me
to 2PAC, Reika Carter, Kevin Chiles,” and others, but Roper is
not a defendant to this action.

Id.

And she alleges that

Natasha Blanford and Kareem Ebanks “sent me a lot of Instagram
comments” and “defamed my name to my church.”

Id. at 13.

But

again, the complaint fails to recite an actual statement made on
Instagram or to her church, or to explain how Smith was harmed
as a result of it.

Accordingly, Smith has failed to state a

claim for defamation, slander, or libel.
Smith has also failed to state a claim for intentional
infliction of emotional distress.

To state such a claim in New

York, a plaintiff must allege “(1) extreme and outrageous
conduct, (2) intent to cause severe emotional distress, (3) a
10

causal connection between the conduct and the injury, and (4)
severe emotional distress.”
787, 790 (2d Cir. 1996).

Bender v. City of New York, 78 F.3d

“Liability has been found only where

the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community.”

Chanko v. Am. Broad. Companies Inc., 27

N.Y.3d 46, 56 (2016) (holding that filming and broadcasting the
last moments of the plaintiffs’ family member’s life did not
“rise to the level necessary to satisfy the outrageousness
element”).

Here, Smith has not adequately alleged non-frivolous

and non-conclusory facts suggesting extreme and outrageous
conduct.
D.

Leave to amend
Generally, a district court should allow a pro se

plaintiff an opportunity to amend a complaint to cure its
deficiencies.

Jaser v. New York Prop. Ins. Underwriting Ass’n,

815 F.2d 240, 243 (2d Cir. 1987).

Leave to amend may be denied

where, as is the case here, the plaintiff has already been given
the opportunity (or multiple opportunities) to amend, but has
failed to cure the complaint’s deficiencies.

11

See Salahuddin v.

Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

Leave to amend is

therefore denied. 5
Conclusion
Roc Nation and Reform Alliance’s motions to dismiss
are granted, and all remaining claims are dismissed sua sponte.
All such dismissals are with prejudice.

The Clerk of Court is

respectfully directed to close the case.

SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated:

March 22, 2024
Brooklyn, New York

5 Furthermore, this plaintiff has a history of filing frivolous suits
against celebrities and public figures. Judge Engelmayer of the Southern
District of New York dismissed her substantially similar complaint in Smith
v. Harris, et al., for lack of subject matter jurisdiction, finding that the
complaint failed to plead the parties’ domiciles or a federal question. No.
21-CV-571, ECF No. 8 (Oct. 6, 2021).

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