Bayne v. Health Insurance Portability and Accountability Act et al
Filing
24
MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the Nassau County Commission on Human Rights' motion to dismiss is granted in its entirety and the claims against the remaining de fendants are dismissed sua sponte. IT IS FURTHER ORDERED that the plaintiff's motion to stay/halt sale auction or seizure of public storage 817 and plaintiff's motion to compel the parties to halt all use of behavioral techniques are denied in their entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/17/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-0321 (JFB)
_____________________
DEDORA BAYNE,
Plaintiff,
VERSUS
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT, NASSAU COUNTY
COMMISSION ON HUMAN RIGHTS AND U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES.
Defendants.
___________________
MEMORANDUM AND ORDER
January 17, 2012
___________________
on Human Rights (“NCCHR”)2 and the US
Department of Health and Human Services3
Joseph F. Bianco, District Judge:
Pro Se plaintiff DeDora Bayne
(“plaintiff” or “Bayne”) brings this action
pursuant to the Health Insurance Portability
and Accountability Act (“HIPAA”), 42
U.S.C. § 1985 (“Section 1985”) and 42
U.S.C. § 1983 (Section 1983)1 against
defendants, the Nassau County Commission
2
As a threshold matter, the Court notes that the
Nassau County Commission on Human Rights is an
“administrative arm[ ]” of the municipal entity, the
County of Nassau, and thus lacks the capacity to be
sued as a separate entity. See, e.g., Caidor v. M & T
Bank, No. 5:05–CV–297, 2006 WL 839547, at *2,
2006 U.S. Dist. LEXIS 22980, at *6–7 (N.D.N.Y.
Mar. 27, 2006) (“‘Under New York law, departments
which are merely administrative arms of a
municipality, do not have a legal identity separate
and apart from the municipality and cannot sue or be
sued.’” (quoting Hall v. City of White Plains, 185
F.Supp.2d 293, 303 (S.D.N.Y.2002)). As such, the
Court will construe plaintiff’s complaint as lodged
against the County of Nassau.
1
The plaintiff does not specifically state that she is
bringing her action pursuant to HIPAA, Section 1985
and Section 1983. However, in an abundance of
caution, the Court construes the allegations in the
compliant liberally as claims for a violation of
HIPAA, conspiracy pursuant to Section 1985 and
deprivation of the plaintiff’s constitutional rights
pursuant to Section 1983.
3
Plaintiff also brings this action against the Health
Insurance Portability and Accountability Act
(“HIPAA”). However, HIPAA is a bill enacted by
1
(collectively the “defendants”), alleging that
the defendants failed to intervene on her
behalf when unknown persons or entities
conspired to defame her. The NCCHR now
moves for an order dismissing the complaint
in its entirety, pursuant to Rules 8(a) and
12(b)(6) of the Federal Rules of Civil
Procedure. For the reasons set forth below,
the complaint is dismissed in its entirety
with prejudice as factually and legally
frivolous.
As examples of this conduct, plaintiff
points to several incidents. Plaintiff notes
that each Sunday, since August 2010, she
has contacted the New York State
Unemployment Department to certify for
unemployment benefits by using a payphone
at a supermarket in Nassau County. (Id. at
3.) Plaintiff alleges that a satellite format is
picking
up
her
conversation
and
broadcasting it to the public. (Id).
Plaintiff also notes that, in December
2010, she went to pay her car insurance and
the woman at the counter wrote down three
digits that resembled her social security
number. (Id.) According to plaintiff,
because she knew that the State of New
York and satellite were using a covert form
of surveillance, she asked the woman to
clarify what she was doing. (Id. 3-4.) The
woman stated that she was writing down
codes used for her job and that she did not
need a social security number. (Id. at 4.)
Plaintiff believes that the formats being used
will “pick this up as me giving the wrong
information to a clerk when in fact the entire
matter would be taken out of context and
exploit the elements of lapse in time
between events.” (Id.)
I. THE COMPLAINT
The following facts are taken from the
complaint and are not findings of fact by the
Court. Instead, the Court assumes these
facts to be true for purposes of deciding the
pending motion to dismiss and will construe
them in a light most favorable to plaintiff,
the non-moving party.
The alleged acts occurred from
approximately
1997
through
2010.
(Complaint at 2.) According to the plaintiff,
it appears as though unknown persons or
entities have been engaged in a system of
profiling plaintiff that has placed Bayne in
legally compromising situations and in
physical danger. (Id. at 3.) Plaintiff states
that the profiling “was designed to aggregate
features of other people who themselves met
a forensic criteria over the years, that I did
not have historically because my
appearance, health, lifestyle personal habits
and circumstances were historically different
and I had surgery in 1997.” (Id.) Plaintiff
also alleges that it was designed to deprive
her of her civil liberties and civil rights
under the law as she has been unable to get
unbiased legal representation. (Id. at 2-3.)
Plaintiff also alleges that, after she was
fired from her job on March 22, 2010, she
became aware of the fact that her activities
in her apartment were being broadcast
publically via alternative media formats by
persons with propriety purposes, media
purposes, risk management purposes and
profiling. (Id. 4-5.)
She contacted the
defendants “encouraging them to intervene
not only on my behalf but on behalf of
others who were similarly situated, but who
are no longer with us.”(Id. at 5.) According
to plaintiff, “[d]efendants placed themselves
deliberately in conflict of interest situation
and failed to contact me, despite having my
email address.” (Id. 5.)
Congress. Therefore, it is not an entity that can be
sued. Accordingly, the Court sua sponte dismisses
the claims against HIPAA.
2
anticipation of filing its motion to dismiss.
This Court waived the pre-motion
conference and set a briefing schedule for
NCCHR’s motion to dismiss. The NCCHR
submitted its motion to dismiss on
September 6, 2011. The briefing schedule
indicated that plaintiff was to serve her
opposition to the motion on or before
October 6, 2011, however, plaintiff failed to
submit an opposition to the motion. On
October 17, 2011, the NCCHR requested
that this Court consider the defendants’
motion for summary judgment fully briefed.
On January 6, 2012, well after her
opposition brief was due, plaintiff filed her
opposition. Although the response was
several months late, the Court has fully
considered that submission, as well as all
other submissions in the case. The U.S.
Department of Health and Human Services
(“HHS”) has not answered or appeared in
this action.4
Plaintiff also notes that in June 2010, she
lost her apartment and had to live in unsafe
and unsanitary living conditions.
(Id.)
Plaintiff avers that “[s]everal groups of
people and entities with different objectives
and motivations, opportuned this period of
my life to their advantage and having been
using the results of their research and
development projects and their advantage
and the funding provided by the government
as means of undue influence and to sway
public opinion.” (Id.)
Plaintiff alleges that she informed the
defendants of this activity and that the
techniques,
methods,
devices,
instrumentation, and technology being
employed to effect the system of profiling
was extremely biased, unconstitutional and
lacked safeguards against producing
fraudulent content data. (Id. at 3.) Plaintiff
also alleges that she contacted the
defendants to complain about various
intrusions into her privacy by such unknown
sources or entities and the publication by
such sources of private information about
her. (Id. at 4-5.) Moreover, plaintiff states
that she “informed the defendants that
neither my family nor myself have been
informed of any health issues that have been
circulating publically. Therefore, whatever
the officials were exposed to, questions
should have been raised as to the accuracy
of the information being circulated which
could only be established by talking to me
and doing an in[-]depth investigation by
contacting me directly. Since this did not
happen, my rights under the Constitution
have been violated based on prejudice, by
the defendants.” (Id. at 6.)
III. DISMISSAL UNDER RULE 8
A. Legal Standard
Rule 8 of the Federal Rules of Civil
Procedure requires that pleadings present a
“short and plain statement of the claim
showing that the pleader is entitled to
relief.” Swierkiewicz v. Sorema, N.A., 534
U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002). Pleadings are to give “fair notice of
what the plaintiff’s claim is and the grounds
upon which it rests” in order to enable the
opposing party to answer and prepare for
trial, and to identify the nature of the case.
Dura Pharms., Inc. v. Broudo, 544 U.S. 336,
346, 125 S.Ct. 1627, 161 L.Ed.2d 577
4
II. PROCEDURAL HISTORY
It is not clear whether plaintiff properly served
HHS in this action. In any event, the Court finds that
plaintiff’s claims against HHS also are unintelligible,
fanciful, and frivolous. Accordingly, the NCCHR’s
motion to dismiss is granted and the Court sua sponte
dismisses the complaint as to the U.S. Department of
Health and Human Services.
On January 20, 2011, plaintiff filed her
complaint. On August 2, 2011, the NCCHR
requested a pre-motion conference in
3
observed, “[d]ismissal pursuant to the rule
‘is usually reserved for those cases in which
the complaint is so confused, ambiguous,
vague, or otherwise unintelligible that its
true substance, if any, is well disguised.’”
Wynder v. McMahon, 360 F.3d 73, 80 (2d
Cir. 2004) (quoting Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988)).
(2005) (quoting Conley v. Gibson, 335 U.S.
41, 47 (1957), overruled in part on other
grounds by Bell Atlantic Corp. v. Twombly,
550 U.S. 554 (2007)).
In Twombly, the Supreme Court clarified
this pleading standard, declaring that:
While, for most types of
cases, the Federal Rules
eliminated the cumbersome
requirement that a claimant
“set out in detail the facts
upon which he bases his
claim,” Rule 8(a)(2) still
requires a “showing,” rather
than a blanket assertion, of
entitlement to relief. Without
some factual allegation in the
complaint, it is hard to see
how a claimant could satisfy
the requirement of providing
not only “fair notice” of the
nature of the claim, but also
“grounds” on which the claim
rests.
In addition, in considering a motion
under Rule 8(a), courts should liberally
construe the complaint of a pro se litigant in
his or her favor. Salahuddin, 861 F.2d at 42;
see also Platsky v. C.I.A., 953 F.2d 26, 28
(2d Cir. 1991) (“[T]he Supreme Court has
instructed the district courts to construe pro
se complaints liberally and to apply a more
flexible standard in determining the
sufficiency of a pro se complaint than they
would in reviewing a pleading submitted by
counsel.” (citations omitted)).
However, as the Second Circuit has held,
Rule 8(a) does not indicate that “[p]laintiffs
bear no burden at the pleading stage.”
Amron v. Morgan Stanley Inv. Advisors Inc.,
464 F.3d 338, 343 (2d Cir. 2006). Instead, a
court retains the power, “[w]hen a complaint
does not comply with the requirement that it
be short and plain, . . . to dismiss the
complaint.” Salahuddin, 861 F.2d at 42; see,
e.g., Russo-Lubrano v. Brooklyn Fed. Sav.
Bank, No. 06 Civ. 0672(CPS), 2007 WL
121431, at *4 (E.D.N.Y. Jan. 12, 2007)
(dismissing claims of pro se litigant
pursuant to Rule 8(a)). “Further, if the court
dismisses the complaint for failure to
comply with Rule 8, it should generally give
the plaintiff leave to amend. This is
especially true when the complaint states a
claim that is on its face nonfrivolous.”
Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d
Cir. 1995).
550 U.S. at 556 n. 3 (quoting Conley, 355
U.S. at 47, and citing 5 C. Wright & A.
Miller, Federal Practice & Procedure §
1202, at 94, 95 (3d ed.2004)). “To survive a
motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’ A claim has facial plausibility 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, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 570).
Rule 8(a) is “not meant to impose a great
burden upon a plaintiff.” Dura Pharms., 544
U.S. at 347. As the Second Circuit has
Finally, regardless of whether a plaintiff
has paid the filing fee, a district court has the
4
3780372, at *4 (E.D.N.Y. Sept. 17, 2010);
McCormick v. Jackson, No. 07-CV-7893
(JSR), 2008 WL 3891260 (S.D.N.Y. Aug.
21, 2008).
inherent power to sua sponte dismiss a
frivolous case. See Fitzgerald v. First East
Seventh St. Tenants Corp., 221 F.3d 362,
363-64 (2d Cir. 2000) (a district court may
dismiss a frivolous complaint sua sponte
even when the plaintiff has paid the required
filing fee); see also Hawkins-El III v. AIG
Federal Savings Bank, 334 F. App’x 394,
395 (2d Cir. June 18, 2009) (affirming
district court’s sua sponte dismissal of fee
paid frivolous complaint); Paige v. City of
New York, No. 10-CV-5469 (SLT)(RER),
2011 WL 3701923, *2 (E.D.N.Y. Aug. 23,
2010) (even where a pro se plaintiff “has
paid the filing fee, a district court has the
inherent power to dismiss a case, sua sponte,
if it determines that the action is frivolous or
that the court lacks jurisdiction over the
matter”); Reyes v. Reyes, No. 11-CV2536(KAM), 2011 WL 3625562, *2
(E.D.N.Y. Aug. 16, 2011) (dismissing fee
paid complaint sua sponte); Gianello v. Port
Authority of N.Y. and N.J., No. 11 Civ.
3829(JGK), 2011 WL 2436674 (S.D.N.Y.
June 16, 2011) (“The Court has the authority
to dismiss sua sponte a complaint, or portion
thereof, for which a plaintiff has paid the
filing fee where the plaintiff presents no
arguably meritorious issue.”).
B. Application
The NCCHR argues that the complaint
fails to give “fair notice” of the claims
asserted by plaintiff or the basis for
plaintiff’s claims. For the reasons that
follow, the Court agrees and finds that the
complaint fails to satisfy the minimal
pleading requirements of Rule 8(a). That is,
applying a relatively more “flexible
standard” for determining the sufficiency of
a pro se complaint, the Court finds that the
complaint “is so . . . ambiguous, vague, or
otherwise unintelligible that its true
substance, if any, is well disguised.”
Salahuddin, 861 F.2d at 42.
Plaintiff’s
complaint
is
largely
unintelligible and, in any event, fanciful and
frivolous. As detailed supra, it appears as
though plaintiff believes that she is being
subjected to profiling and satellite tracking
by persons that are unknown to her. While
she inartfully details examples of this
profiling by unknown parties, the only
allegation plaintiff appears to be making
against the defendants is that she reported
this conduct to the defendants and they did
not intervene. However, plaintiff, inter alia,
fails to explain what she reported to the
defendants or what action they were
required to take in response. Thus, the
series of scattered facts are simply
incomprehensible. Defendants cannot be
expected to parse plaintiff’s complaint into
comprehensible legal claims, or even
understand factually the nature of plaintiff’s
allegations against them.
It is well-established that an action is
“frivolous” when “the factual contentions
are clearly baseless, such as when
allegations are the product of delusion or
fantasy.” Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998)
(internal quotations and citations omitted).
“[A] finding of factual frivolousness is
appropriate when the facts alleged rise to the
level of the irrational or the wholly
incredible, whether or not there are
judicially noticeable facts available to
contradict them.” Denton v. Hernandez, 504
U.S. 25, 33, 112 S. Ct. 1728, 118 L. Ed.2d
340 (1992); see also Gelish v. Social Sec.
Admin., No. 10-CV-3713 (JS), 2010 WL
Accordingly, after carefully examining
the complaint and applying a “flexible
5
a two-pronged approach for courts deciding
a motion to dismiss. The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
standard in determining the sufficiency of a
pro se complaint,” Platsky, 953 F.2d at 28,
the Court finds that the complaint is so
vague and ambiguous that the defendants are
unable to identify the nature of the case,
respond to the complaint, and prepare for
trial. Thus, the complaint is dismissed under
Rule 8.
IV. DISMISSAL UNDER RULE 12(B)(6)
The NCCHR also argues that, to the
extent plaintiff attempts to plead claims
pursuant to HIPAA, Section 1985 and
Section 1983, those claims could not survive
a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. As set
forth below, the Court agrees.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe the [plaintiff’s] pleadings . . .
liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10–CV2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008); McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004)). A pro se
plaintiff’s complaint, while liberally
interpreted, still must “‘state a claim to relief
that is plausible on its face.’” Mancuso v.
Hynes, 379 Fed.App’x 60, 61 (2d Cir. 2010)
(citing Iqbal, 129 S.Ct. at 1949); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (applying Twombly and Iqbal to pro
se complaint).
A. Legal Standard
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 555). This standard
does not require “heightened fact pleading
of specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
B. Application
1. HIPAA Claim
To the extent plaintiff appears to be
alleging that the defendants violated HIPAA
because they failed to intervene and prevent
the dissemination of her personal
information to the public by unnamed
sources, that claim cannot possibly survive a
motion to dismiss. In particular, the Court
concludes that this claim is without merit
because there is no private right of action
As set forth supra, the Supreme Court
clarified the appropriate pleading standard in
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009), setting forth
6
under HIPAA. See Block v. Pike, No. CV09-5503 (RRM), 2010 WL 2606355 at *6
(E.D.N.Y May 20, 2010) (citing Warren
Pearl Const. Corp. v. Guardian Life Ins. Co.
of Am., 639 F.Supp. 2d 371, 377 (S.D.N.Y.
2009); Pecou v. Forensic Comn. Pers., No.
06-CV-3714 (SJF), 2007 WL 1490450, at *2
(E.D.N.Y. Jan 5, 2007.)
Accordingly,
plaintiff’s claim that the defendants violated
HIPAA must be dismissed.
conspirators’ action.” Id. (quoting United
Bhd. of Carpenters, Local 610 v. Scott, 463
U.S. 825, 829, 103 S.Ct. 3352, 77 L.Ed.2d
1049 (1983)).
Plaintiff
only
offers
conclusory
allegations that a conspiracy has taken place.
Plaintiff fails to provide specific facts, such
as the dates of such alleged events or who in
fact was involved in the conspiracy.
Moreover, apart from defendants not
responding to her complaints in the manner
in which she would like, plaintiff has failed
to set forth defendants’ involvement in any
alleged conspiracy. In addition, plaintiff’s
complaint fails to state that she is in a
protected class of persons and that the
defendants conspired against her for that
reason. Accordingly, any claim pursuant to
Section 1985 must be dismissed in its
entirety.
2. Section1985 Claim
To the extent plaintiff is attempting to
allege that she is the victim of a conspiracy
by unknown persons or entities under
Section 1985, that claim cannot survive a
motion to dismiss.
Section 1985(3) prohibits two or more
persons from conspiring for the purpose of
depriving any person of the equal protection
of the laws, or of equal privileges and
immunities under the laws.5 In order to
establish a claim under § 1985(3), plaintiff
must establish four elements: “(1) a
conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or
class of persons of 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 of a citizen
of the United States.” Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
1087 (2d Cir. 1993). The conspiracy must be
motivated “by some racial or perhaps
otherwise
class-based,
invidious
discriminatory
animus
behind
the
3. Section 1983 Claim6
6
NCCHR also argues that the complaint is barred in
part by the statute of limitations.
The NCCHR
argues that there is no federal statute of limitations
within which claims under Section 1983 must be
brought, but that pursuant to New York Law, a three
year statute of limitations applies. (NCCHR’s Mem.
of Law. At 7-8.) Therefore, according to NCCHR,
because the plaintiff has alleged that some of the acts
occurred in 1997, some of plaintiff’s claims are time
barred. This Court agrees. There exists no federal
statute of limitations within which claims under
Section 1983 must be brought. See Wilson v. Garcia,
471 U.S. 261, 266-267, 105 S.Ct. 1938 (1985),
superseded by statute on other grounds as recognized
in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
377–81, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004).
“[W]here state law provides multiple statutes of
limitations for personal injury actions, courts
considering Section 1983 claims should borrow the
general or residual statute for personal injury
actions.” Owens v. Okure, 488 U.S. 235, 250, 109
S.Ct. 573 (1989). In New York, pursuant to New
York Civil Practice Law and Rules Section 214, a
three year statute of limitations exists “to recover
upon a liability, penalty or forfeiture created or
imposed by statute.” N.Y.C.P.L.R. § 214(2). In this
case, the complaint was filed on January 20, 2011.
5
As noted supra, plaintiff does not indicate that she
is bringing her claim pursuant to Section 1985, but
merely alleges that a conspiracy is taking place and
defendants did not intervene.
However, after
reviewing the complaint, the Court, in an abundance
of caution, construes plaintiff’s allegations as a claim
for relief under Section 1985(3).
7
To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“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).
amend at least once when a liberal
reading of the complaint gives any
indication that a valid claim might be
stated.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give [leave to amend] when justice so
requires.” Fed.R.Civ.P. 15(a). Thus, in
dismissing plaintiff’s complaint, the Court
has considered whether to dismiss with or
without prejudice. However, the Court
declines to provide plaintiff with an
opportunity to re-plead and dismisses the
complaint with prejudice for three reasons.
Here, plaintiff alleges that she was the
victim of a conspiracy conducted by
unknown persons or entities and that the
defendants failed to intervene when they
were notified. Although plaintiff alleges
that she was prejudiced and her rights under
the Constitution were violated by the
defendants actions, even construing
plaintiff’s claim liberally, it is unclear what
rights were deprived plaintiff by defendants’
actions.
Plaintiff details an alleged
conspiracy by unknown persons or entities,
but fails to provide any facts that would
implicate any wrongdoing by the
defendants. Accordingly, to the extent that
plaintiff has attempted to plead a claim for
relief under Section 1983, her claims must
be dismissed.
First, plaintiff has not requested an
opportunity to re-plead. Thus, the Court
declines to grant leave to re-plead, and failed
to explain how any amendment could
possibly state a plausible legal claim. See,
e.g., Ackermann v. Doyle, 43 F. Supp.2d
265, 275 (E.D.N.Y. 1999) (“the Court is
unable to discern a viable cause of action
from the complaint, and the plaintiff did not
request leave to replead. The Court declines
to sua sponte afford the plaintiff leave to
amend on the ground of futility. In the
Court’s view, granting leave to amend
would be unproductive and dismissal with
prejudice is appropriate.”)
V. LEAVE TO RE-PLEAD
This Court recognizes that generally “if
the court dismisses the complaint for failure
to comply with Rule 8, it should generally
give the plaintiff leave to amend.”
Simmons, 49 F.3d at 87. The Second Circuit
has emphasized:
Second, as discussed above, plaintiff’s
claims could not survive a Rule 12(b)(6)
motion and, thus, any attempted amendment
would be futile. After carefully reviewing
the complaint (and plaintiff’s opposition
papers), it is abundantly clear that no
amendments can cure the pleading
deficiencies and any attempt to replead
would be futile. See Cuoco, 222 F.3d at 112
(“The problem with [plaintiff’s] cause[ ] of
action is substantive; better pleading will not
cure it. Repleading would thus be futile.
Such a futile request to replead should be
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave to
Accordingly, to the extent pro se plaintiff seeks relief
for acts that took place prior to January 20, 2008, the
claims are time-barred and must be dismissed.
8
frivolous nature of these claims, leave to replead is unwarranted.7
denied.”); see also Hayden v. Cnty. of
Nassau, 180 F.3d 42, 53 (2d Cir. 1999)
(holding that if a plaintiff cannot
demonstrate he is able to amend the
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied”).
VI. CONCLUSION
For the foregoing reasons, NCCHR’s
motion to dismiss plaintiff’s complaint,
pursuant to Rules 8(a) and 12(b)(6) of the
Federal Rules of Civil Procedure, is granted.
Moreover, for the same reasons, the claims
against the remaining defendants are sua
sponte dismissed. Any pending motions
filed by plaintiff are denied as moot.
Finally, any leave to amend is denied as
futile, and the complaint is dismissed in its
entirety with prejudice. The Clerk of the
Court shall enter judgment accordingly and
close the case.
Finally, a court may dismiss without
leave to amend when “the substance of the
claim pleaded is frivolous on its face.”
Salahuddin, 861 F.2d at 42; see also Bloom
v. United States Government, 02 Civ. 2352,
2003 U.S. Dist. LEXIS 18087, at *23
(S.D.N.Y. Oct. 7, 2003). As discussed
supra, “[a] claim is frivolous when it is
vague and incomprehensible, or when it is
supported by baseless factual allegations
describing fantastic or delusional scenarios.”
Bloom, 2003 U.S. Dist. LEXIS 18087, at
*23 (internal citations and quotation
omitted). Here, there is no question that the
claims are vague and incomprehensible, and
are supported by fantastic and delusional
allegations. Plaintiff’s opposition to the
motion to dismiss is similarly unintelligible
and fanciful. See Plaintiff’s Response to
Motion to Dismiss, at 1 (“I, DeDora Bayne,
do hereby respectfully ask the Court not to
dismiss this action on the grounds that due
to the negligence of the Defendants, I now
find myself in clear and present danger. An
Order of Protection and Injunctive relief to
halt all computer interface activity via
machine, virtual immersion, sensor,
applications and systems design by the
general public as there is reason to fear for
my health and safety. . . .To get the desired
responses, scientific methods and biotechnology are being employed recklessly
yielding false-positive results. Research
formats are using data obtained resulting
from observer bias and error while media
formats and the government have been
capturing this fiasco and coding same with
erroneous data based on guidelines.”).
Under these circumstances, given the clearly
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated:
January 17, 2012
Central Islip, NY
***
Plaintiff is representing herself pro se:
DeDora Bayne c/o Edith Rodney, 3525
Edson Avenue, Bronx, New York 10466.
The attorney for the defendant Nassau
County Commission on Human Rights is
7
On July 14, 2011, plaintiff also filed a motion for
“[a] statewide order to halt all sale, auction or
seizure” of certain documents and to “[h]alt all
efforts designed to have plaintiff institutionalized.”
On August 1, 2011, plaintiff also filed a motion to
“[h]alt all use of behavioral techniques which have
been in violation of the Human Rights laws.” As
discussed supra, plaintiff’s complaint is frivolous and
is dismissed. Accordingly, these motions are denied
as moot.
9
Liora M. Ben-Sorek, Nassau County
Attorney’s Office, One West Street,
Mineola, New York 11501.
10
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