Dan Temple, Jr. v. NYS Department of Taxation & Finance, et al
Filing
59
MEMORANDUM AND OPINION. IT IS HEREBY ORDERED that, for the reasons set forth in the attached Memorandum and Order, defendants' motions to dismiss are granted, and the complaint is dismissed in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/15/2012. (Maxwell, Rita) (copy mailed to pro se plaintiff first class mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-0759 (JFB) (ETB)
_____________________
DAN TEMPLE, JR.,
Plaintiff,
VERSUS
N.Y.S. DEPARTMENT OF TAXATION & FINANCE, CCED CHILD SUPPORT
ENFORCEMENT SECTION; STATE FARM BANK, F.S.B.; EDWARD BREHM; and
TAMMIE HILDRETH,
Defendants.
___________________
MEMORANDUM AND ORDER
February 15, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Dan Temple Jr. (hereinafter
“plaintiff” or “Temple”) brought this action
against defendants N.Y.S. Department of
Taxation & Finance (“DTF”), CCED Child
Support Enforcement Section; State Farm
Bank, F.S.B. (“State Farm”); Edward Brehm
(“Brehm”);
and
Tammie
Hildreth
(“Hildreth”), pursuant to 42 U.S.C. § 1983,1
1
Plaintiff also alleges that he seeks declaratory relief
pursuant to 28 U.S.C. §§ 2201, 2202, and injunctive
relief pursuant to 28 U.S.C. §§ 2283, 2284 and
Federal Rule of Civil Procedure 65. However, upon
an examination of plaintiff’s complaint, it is clear that
the only relief sought is money damages pursuant to
42 U.S.C. § 1983. In any event, to the extent plaintiff
is attempting to assert claims for injunctive and
declaratory relief, such claims are also dismissed on
grounds of the Rooker-Feldman doctrine for the same
reasons discussed infra with respect to the claims for
monetary damages.
alleging that defendants violated his right to
due process by withdrawing money from
plaintiff’s bank account to satisfy past due
child support without warning the plaintiff.
Plaintiff also alleges that the child support
levy imposed upon him by defendant DTF
was invalid.
In two separate motions, defendants
DTF and Brehm (“DTF defendants”) and
defendants State Farm and Hildreth (“State
Farm defendants”) moved to dismiss
plaintiff’s complaint, pursuant to Federal
Rule of Civil Procedure 12(b)(1) and
12(b)(6). For the reasons discussed herein,
the Court grants defendants’ motions to
dismiss, and dismisses plaintiff’s complaint
in its entirety.
I. BACKGROUND
that the warrants were unauthorized and the
levy was fraudulent. (Id. at 5.)4 Plaintiff
alleges that State Farm failed to give him
proper notice that the account would be
subject to the levy and failed to safeguard
plaintiff’s account.5 (Compl. at 5.)
A. The Complaint
The following facts are taken from the
complaint and are not findings of fact by the
Court.2 They are assumed to be true for the
purpose of deciding this motion and are
construed in a light most favorable to the
plaintiff, the non-moving party.
B. Procedural History
Plaintiff filed his complaint on January
24, 2011. The DTF defendants filed their
motion to dismiss on June 1, 2011. The
State Farm defendants filed their motion to
dismiss on June 2, 2011. Plaintiff filed his
opposition to defendants’ motions on
September 12, 2011.
The State Farm
defendants filed a reply in support of their
motion to dismiss on September 22, 2011.
The DTF defendants filed a reply in support
of their motion to dismiss on September 23,
2011. The Court has fully considered the
submissions of the parties.
The plaintiff has been incarcerated in
South Carolina for approximately thirteen
years. (Plaintiff’s Opposition Brief (“Pl.’s
Opp.”) at 4.) In 2009, plaintiff worked
while in prison and earned approximately
$1900. (Complaint (“Compl.”) at 4.) Of the
money earned, plaintiff set aside $1500 in a
fixed account at State Farm for the benefit of
his children who resided in South Carolina.
(Pl.s’ Opp. at 4; Compl. at 4.) On May 27,
2010, State Farm stated that it had received
a levy from DTF and released the funds in
plaintiff’s account. (Pl.’s Opp at 4-5.)
II. STANDARD OF REVIEW
Plaintiff alleges that DTF never sent an
“order” or warrant to plaintiff on January 5,
1999, July 25, 2006, March 4, 2009, and
June 7, 2010.3 (Id. at 4.) Plaintiff alleges
When a Court reviews a motion to
dismiss for failure to state a claim for which
relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6), it must
2
4
In addition, the Court considers the factual
allegations in plaintiff’s opposition to defendants’
motions to dismiss. See Davis v. N.Y.C. Dep’t of
Educ., No. 10-cv-3812(KAM)(LB), 2012 WL
139255 at *3 (E.D.N.Y. Jan. 18, 2012) (“In addition,
because a pro se plaintiff’s complaint must be
construed liberally, it is appropriate for the court to
consider the factual allegations in plaintiff’s
opposition materials to supplement the allegation in
[plaintiff’s] Complaint.”)
3
Attached to their Notice of Motion, the DTF
defendants submit three warrants related to Temple’s
support arrears obligation docketed January 5, 1999
(Warrant ID C970129399W001), July 26, 2006
(Warrant ID C70129399W002), and February 19,
2009 (Warrant ID C970129399W003). (DTF Def.s’
Notice of Motion, June 1, 2011, ECF No. 33.) The
“Judgment Debtor” is listed as “Dan Temple” and the
“Last Known Address” is listed as: “116 Crest Ave.
Parrish AL 35580-3205.” (Id.)
Plaintiff also alleges that DTF failed to “allow an
Order of DNA, to show the biological father of the
child.” (Compl. at 5.)
5
The Court notes that the State Farm defendants have
submitted three exhibits that address State Farm’s
notice to the plaintiff regarding the levy. In a letter
dated June 1, 2010, State Farm informs plaintiff of
the “Notice of Child Support” and informs plaintiff
that funds in the amount of $1,508.34 are being held
pending contact from DTF. (SF Defs.’ Ex. C.) On
June 8, 2010, a check was issued to DTF in the
amount of $1,505.57. (SF Defs.’ Ex. D.) In a letter
dated June 8, 2010, State Farm informs plaintiff that
funds from his account(s) in the amount of $1,505.57
had been sent to DTF. (SF Defs.’ Ex. E.) Since
these exhibits are beyond the pleadings, the Court
does not consider them in connection with these
motions to dismiss. However, even without those
exhibits, the complaint must be dismissed for all the
reasons discussed infra.
2
The Court notes that, in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., Inc., 273 F. Supp. 2d 351,
356-57 (S.D.N.Y. 2003) (internal citations
omitted), aff’d in part and reversed in part
on other grounds sub nom., Lentell v.
Merrill Lynch & Co., 396 F.3d 161 (2d Cir.
2005), cert. denied, 546 U.S. 935 (2005);
see also Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“[T]he
district court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of N.Y., No. 04 Civ. 1859(JG), 2005
U.S. Dist. LEXIS 10865, at *9-10 (E.D.N.Y.
May 13, 2005) (stating court could consider
documents within the public domain on a
Rule 12(b)(6) motion to dismiss).
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). “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 Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). 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.”
Twombly, 550 U.S. at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 129
S.Ct. 1937 (2009). 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.” Id. at 1950. Although
“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. “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. The
plausibility standard is not akin to a
‘probability requirement,’ but it asks for
more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 1949
(internal citations omitted) (quoting and
citing Twombly, 550 U.S. at 556–57).
III. DISCUSSION
Liberally
construing
plaintiff’s
complaint, the Court finds that plaintiff
asserts the following claims: (1) a due
process claim against the DTF defendants
and the State Farm defendants for failing to
give plaintiff notice of the levy; (2) a due
process claim against the State Farm
defendants for failing “to [investigate] the
Constitutional right of plaintiff [and
3
plaintiff’s children” and closing the account
before the fixed period ended; and (3) a due
process claim against the DTF and State
Farm
defendants
for
“[untruthful]
statement[s] of a service of [a] Warrant” and
discrimination against plaintiff and his
children. (Compl. at 5.)
1. Eleventh Amendment Immunity
The DTF defendants argue that they are
protected by the Eleventh Amendment
because DTF is a state agency and Brehm is
a state official operating in his official
capacity. For the reasons set forth below,
the Court agrees with the DTF defendants.
A. The DTF Defendants’ Motion to Dismiss
a. Applicable Law
The DTF defendants move to dismiss
plaintiff’s complaint on the following
grounds: (1) the DTF defendants are
protected
by
Eleventh
Amendment
Immunity; (2) plaintiff does not have
standing to sue the DTF defendants;6 (3) the
Court lacks subject matter jurisdiction under
the Rooker-Feldman doctrine, (4) the
complaint fails to state a cause of action
against the DTF defendants; and (5) the
complaint should be dismissed because
plaintiff had adequate post-deprivation
remedies. The Court examines the DTF
defendants first and third grounds infra and
concludes that, on either ground, plaintiff’s
complaint must be dismissed.7
The Eleventh Amendment to the United
States Constitution provides:
The Judicial power of the United
States shall not be construed to
extend to any suit in law or equity,
commenced or prosecuted against
one of the United States by Citizens
of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. “The reach of the
Eleventh Amendment has . . . been
interpreted to extend beyond the terms of its
text to bar suits in federal courts against
states, by their own citizens or by foreign
sovereigns . . . .” State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d
Cir. 2007) (quoting Mohegan Tribe &
Nation v. Orange Cnty., 395 F.3d 18, 20 (2d
Cir. 2004)) (alterations in original). Thus,
absent a state’s consent to suit or an express
statutory waiver, the Eleventh Amendment
bars federal court claims against states. Will
6
As an initial matter, the DTF defendants argue that
plaintiff lacks standing to sue the DTF defendants
because plaintiff cannot allege that he has suffered
some actual or threatened injury as the result of the
DTF defendants’ putatively illegal conduct, and that
plaintiff cannot show that the injury fairly can be
traced to the challenged action. The DTF defendants
argue that the acts plaintiff complains of were the
result of determinations of the New York State Office
of Temporary and Disability Assistance (OTDA) and
various operations of law. The Court finds that as
alleged, plaintiff’s complaint states enough facts to
create standing with respect to plaintiff’s due process
claim against the DTF defendants.
Plaintiff
challenges both DTF’s procedures when executing a
warrant and its compliance with procedures in place.
7
The DTF defendants’ other grounds to dismiss
plaintiff’s complaint are briefly described as follows.
First, the DTF defendants argue that New York’s
child support enforcement procedures provide
adequate due process as a matter of law and
plaintiff’s attempts to challenge the procedures is
futile. Second, the DTF defendants argue that
because plaintiff had adequate post-deprivation
remedies, including an appeal of the child support
order and an Article 78 proceeding, the complaint
should be dismissed. Third, the DTF defendants
argue that the only warrant satisfied against plaintiff
was the 1999 warrant, which became enforceable for
twenty years in 1999. A challenge to this warrant
pursuant to Article 78 is subject to a four-month
statute of limitations, and thus plaintiff’s claim is
time-barred. Because the Court dismisses plaintiff’s
complaint pursuant to the Eleventh Amendment and
the Rooker-Feldman doctrine, the Court need not
reach these alternative grounds for dismissal.
4
v. Mich. Dep’t of State Police, 491 U.S. 58,
66 (1989). Eleventh Amendment immunity
also extends to suits against state officers in
their official capacities. See id. at 71 (“[A]
suit against a state official in his or her
official capacity is not a suit against the
official but rather is a suit against the
official’s office. As such, it is no different
from a suit against the State itself.” (internal
citation omitted)); McNamara v. Kaye, No.
06-CV-5169 (DLI)(CLP), 2008 WL
3836024, at *8 (E.D.N.Y. Aug. 13, 2008)
(“[L]awsuits against state officers acting [in]
their official capacity and lawsuits against
state courts are considered to be lawsuits
against the state.”).8
2. Lack of Subject Matter Jurisdiction Under
the Rooker-Feldman Doctrine
The DTF defendants argue that
plaintiff’s claims are barred by the RookerFeldman doctrine because plaintiff’s
complaint is in essence an appeal from a
state court judgment. For the reasons set
forth below, the Court agrees with the DTF
defendants.
a. Applicable Law
Under the Rooker-Feldman doctrine –
Rooker v. Fid. Trust Co., 263 U.S. 413
(1923), and Dist. of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983) –
a United States District Court has no
authority to review final judgments of a state
court in judicial proceedings, except for
constitutional challenges and reviews
pursuant to an application for a writ of
habeas corpus. As the Supreme Court
explained, in the cases underlying the
doctrine, “the losing party in state court filed
suit in federal court after the state
proceedings ended, complaining of an injury
caused by the state-court judgment and
seeking review and rejection of that
judgement.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 125 S. Ct.
1517, 1526 (2005); see also Hoblock v.
b. Analysis
Here, DTF is a state agency entitled to
Eleventh Amendment Immunity.
See
Walker v. New York, 150 F. App’x 28, 29
(2d Cir. 2005) (upholding dismissal of
plaintiff’s claim against DTF on Eleventh
Amendment grounds); Johnson v. New York,
21 F. App’x 41, 43 (2d Cir. 2001) (same).
Thus, plaintiff’s claim against DTF must be
dismissed pursuant to the Eleventh
Amendment.
After reading plaintiff’s complaint and
opposition, the Court concludes that
plaintiff’s claim with respect to defendant
Brehm is one against Brehm in his official
capacity. Thus, because this defendant is a
state officer and because New York State
has not waived its sovereign immunity for
suits under § 1983,9 Brehm is immune from
suits in his official capacity.10
New York has not consented to § 1983 suits in
federal court . . . .”).
10
Plaintiff alleges that he seeks injunctive and
declaratory relief, which would provide a limited
exception to Eleventh Amendment immunity. See Ex
Parte Young, 209 U.S. 123 (1980). However, the
limited exception does not apply here as plaintiff’s
complaint does not allege an ongoing violation of
federal law and does not seek prospective relief. See
In re Dairy Mart Convenience Stores, Inc., 411 F.3d
367, 372 (2d Cir. 2005) (to determine whether a
plaintiff’s complaint falls within this exception, a
court asks (1) “‘whether [the] complaint alleges an
ongoing violation of federal law,’” and (2) whether it
“‘seeks relief properly characterized as prospective.’”
(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645 (2002))).
8
A narrow exception to this rule exists for officialcapacity suits against state officers seeking
prospective injunctive relief. See Will, 491 U.S. at 71
n.10.
9
See, e.g., Mamot v. Bd. of Regents, 367 F. App’x
191, 192 (2d Cir. 2010) (“It is well-established that
5
lacks jurisdiction to hear this case. See
Storck v. Suffolk Cnty. Dep’t of Soc. Servs.,
62 F. Supp. 2d 927, 938 (E.D.N.Y. 1999)
(“[A]n attempt to appeal the state court’s
decision . . . would clearly be barred by the
Rooker-Feldman doctrine”); Thaler v.
Casella, 960 F. Supp. 691, 697-98
(S.D.N.Y. 1997) (Rooker-Feldman “requires
that an aggrieved state court litigant must
pursue his claims directly in the state
appellate courts and ultimately to the United
States Supreme Court.”).
Albany Cnty. Bd. of Elections, 422 F.3d 77,
83-84 (2d Cir. 2005).
The Second Circuit has delineated four
requirements for the application of the
Rooker-Feldman doctrine: (1) “the federalcourt plaintiff must have lost in state court”;
(2) “the plaintiff must complain of injuries
caused by a state-court judgment”; (3) “the
plaintiff must invite district court review and
rejection of that judgment”; and (4) “the
state-court judgment must have been
rendered before the district court
proceedings commenced.” Hoblock, 422
F.3d at 85 (internal citations and quotations
omitted). The Second Circuit has classified
the first and fourth requirements as
“procedural” and the second and third
requirements as “substantive.” See id.
Moreover, to the extent plaintiff contends
that his claims are reviewable because they
related to the alleged improper enforcement
of the state court judgment rather than the
judgment itself, the Court concludes that
Rooker-Feldman also bars such claims
because the enforcement is inextricably
intertwined with the state court judgment.
See, e.g., Jackson v. Peters, 81 F. App’x
282, 285-86 (10th Cir. 2003) (holding that
Rooker-Feldman barred claim that funds
garnished from federal employer pursuant to
state
child
support
order
was
unconstitutional); Hill v. State of Wisconsin,
Racine Cnty. Child Support Agency, No. 04C-0865, 2005 WL 1962999, at *2 (E.D.
Wis. Aug. 12, 2005) (“Plaintiff also states in
his response that he does not take issue with
the state court’s judgment that he was
responsible for child support payments.
Rather, he states that he challenges
defendants’ use of that judgment to seize
funds he does not owe, falsifying documents
that fabricate his debt, and subjecting him to
abuse of process and false imprisonment.
However, the state court determined that
defendant owed back child support, that he
was in default, and that he was in contempt
and subject to commitment. Thus, the order
allowed defendant to collect from plaintiff,
and such efforts to enforce a state court
judgment are inextricably intertwined with
the judgment . . . . Thus, none of plaintiff's
b. Analysis
The Court finds that the four
requirements for the application of the
Rooker-Feldman doctrine are met here.
The procedural requirements are
satisfied in this action. First, as evidenced
by plaintiff’s complaint and opposition,
plaintiff was ordered to provide a set amount
of money for the support of his child who
lived in New York. Plaintiff requested a
DNA test with respect to his child in New
York, and was denied. (Compl. at 5, Pl.’s
Opp. at 9.) Second, the judgments were
rendered before the district court
proceedings were commenced on January
24, 2011.
The substantive requirements are also
satisfied. Plaintiff is clearly complaining of
injuries caused by a state-court judgment,
namely the order or orders for plaintiff to
pay child support and the order denying
plaintiff a DNA test. Additionally, plaintiff
invites the Court to review and reject the
state-court judgment, and thus, this court
6
arguments convince me
Feldman does not apply.”).
that
Rooker-
1. Lack of Subject Matter Jurisdiction
Under the Rooker-Feldman Doctrine
For the reasons set forth supra Section
III.A.2, the Court concludes that plaintiff’s
claims against the State Farm defendants
must be dismissed pursuant to the RookerFeldman doctrine.
B. State Farm Defendants’ Motion to
Dismiss
The State Farm defendants move to
dismiss plaintiff’s complaint on the
following grounds: (1) plaintiff’s claims are
barred by the Rooker-Feldman doctrine; (2)
state law discharges the State Farm
defendants from liability stemming from the
compliance with the DTF levy; (3)
plaintiff’s complaint fails to allege a
sustainable cause of action for a violation of
42 U.S.C. § 1983; (4) the State Farm
defendants’ conduct was expressly permitted
by plaintiff’s contract with State Farm Bank;
(5) plaintiff lacks standing to bring a claim,
pursuant to 42 U.S.C. § 1983, with respect
to alleged violations of his children’s
constitutional rights; and (6) the claims
against defendant Hildreth are facially
invalid. The Court examines the first, third
and fourth grounds below and concludes that
on each of these independent grounds,
plaintiff’s claim must be dismissed.11
2. Failure to State a Claim Pursuant to 42
U.S.C. § 1983
Even assuming arguendo that the claims
would not barred by the Rooker-Feldman
doctrine, the State Farm defendants contend
that plaintiff’s claim must be dismissed
because it is clear from the pleadings that
the State Farm defendants did not act under
color of state law. The Court agrees.
a. Applicable Law
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). An individual
acts under color of state law when he or she
exercises power “‘possessed by virtue of
state law and made possible only because
the wrongdoer is clothed with the authority
of state law.’” Polk Cnty. v. Dodson, 454
U.S. 312, 317-18 (1981) (quoting United
States v. Classic, 313 U.S. 299 (1941)).
“Private parties are generally not amenable
to suit under § 1983, because they are not
state actors, although they may be liable
where ‘there is a sufficiently close nexus
between the State and the challenged action
11
The State Farm defendants’ other grounds for
dismissal are described as follows. First, N.Y.
C.P.L.R. 5209 protects the State Farm defendants
from common law claims that the bank and its
officials should have investigated the validity of the
warrant’s execution. Second, although plaintiff has
standing to assert violations of his constitutional
rights with respect to the money in the account,
plaintiff lacks standing to bring a § 1983 claim in his
individual capacity based on an alleged deprivation
of his children’s constitutional rights.
Third,
plaintiff’s claims against defendant Hildreth must be
dismissed because plaintiff has failed to allege facts
indicating her personal involvement in the alleged
constitutional deprivations. The Court agrees with all
of these alternative grounds. For the reasons set forth
above and in the State Farm defendants’ papers, the
Court concludes that to the extent plaintiff asserts a
common law claim against the State Farm
defendants, claims on behalf of his children, and
claims against defendant Hildreth, plaintiff’s claims
must be dismissed.
7
2006 WL 1283125, at *5 (S.D.N.Y. May 11,
2006) (citing Ciambriello, 292 F.3d at 32424). Vague and conclusory allegations that
defendants have engaged in a conspiracy to
violate plaintiff’s constitutional rights must
be dismissed. See Ciambriello, 292 F.3d at
325 (dismissing conspiracy allegations
where
they
were
found
“strictly
conclusory”); see also Walker v. Jastremski,
430 F.3d 560, 564 n.5 (2d Cir. 2005)
(“[C]onclusory or general allegations are
insufficient to state a claim for conspiracy
under § 1983.” (citing Ciambriello));
Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983) (“A complaint containing only
conclusory, vague, or general allegations of
conspiracy to deprive a person of
constitutional rights cannot withstand a
motion to dismiss.”); Green v. Bartek, No.
3:05CV1851, 2007 WL 4322780, at *3 (D.
Conn. Dec. 7, 2007) (“The Second Circuit
has consistently held that a claim of
conspiracy to violate civil rights requires
more than general allegations.”).
of the [private party] so that the action of the
latter may be fairly treated as that of the
State itself,’ . . . or where they are ‘jointly
engaged with state officials’ in a conspiracy
to deprive the plaintiff of his constitutional
rights.” Bhatia v. Yale Sch. of Medicine,
347 F. App’x 663, 664-65 (2d Cir. 2009)
(internal citations omitted).
It is axiomatic that private citizens and
entities are not generally subject to Section
1983 liability. See Ciambriello v. Cnty. of
Nassau, 292 F.3d 307, 323 (2d Cir. 2002);
Reaves v. Dep’t of Veterans Affairs, No. 08CV-1624(RJD), 2009 WL 35074, at *3
(E.D.N.Y. Jan. 6, 2009) (“Purely private
conduct is not actionable under § 1983, ‘no
matter how discriminatory or wrongful.’”
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 50 (1999)). However, “the
actions of a nominally private entity are
attributable to the state when: (1) the entity
acts pursuant to the ‘coercive power’ of the
state or is ‘controlled’ by the state (‘the
compulsion test’); (2) when the state
provides ‘significant encouragement’ to the
entity, the entity is a ‘willful participant in
joint activity with the [s]tate,’ or the entity’s
functions are ‘entwined’ with state policies
(‘the joint action test’ or ‘close nexus test’);
or (3) when the entity ‘has been delegated a
public function by the [s]tate.’ (‘the public
function test’).” Sybalski v. Indep. Gr.
Home Living Program, Inc., 546 F.3d 255,
257 (2d Cir. 2008) (citing Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 296 (2001)).
b. Analysis
In the instant action, it is clear from the
allegations in the complaint that the State
Farm defendants cannot, as a matter of law,
qualify as state actors within the meaning of
§ 1983. The State Farm defendants are a
private bank and a bank employee.
In addition, plaintiff has alleged no facts
that the State Farm defendants acted
pursuant to (1) the coercive power of the
state, (2) joint or entwined action with the
state, or (3) a delegation from the state.
Instead, plaintiff alleges, in a conclusory
fashion, that the defendants “have a long
history of working together, [since] the year
of (2007), and join[t]ly in unconstitutional
act.” (Pl.’s Opp. at 15.) These conclusory
allegations do not establish state action on
the part of the State Farm defendants. Mere
compliance with a state-issued levy will not
To demonstrate that a private party
defendant was a state actor engaged in a
conspiracy with other state actors under
§ 1983, a plaintiff must allege: (1) an
agreement between the private party and
state actors, (2) concerted acts to inflict an
unconstitutional injury, and (3) an overt act
in furtherance of the goal. See Carmody v.
City of New York, No. 05-CV-8084 (HB),
8
transform a private bank and its employees
into state actors. See McCarthy v. Wachovia
Bank, N.A., 759 F. Supp. 2d 265, 276-77
(E.D.N.Y. 2011) (“Even if plaintiff were
able to demonstrate a constitutional
violation, his Section 1983 claim would still
fail because the defendants were not acting
under color of state law when they
restrained his bank account.”); Watson v.
Mahaffey, No. C-08-59, 2008 WL 1740090,
at *6, n.14 (S.D. Tex. Apr. 11, 2008)
(“Defendants in this case were private actors
who were following the law, not acting
under color of state law, and Plaintiffs
cannot bring a Section 1983 claim under the
facts as alleged in their Complaint.”); see
also Smith v. Kitchen, 156 F.3d 1025, 102829 (10th Cir. 1997) (finding that compliance
with tax levy did not subject officers and
employees of a private bank to liability in a
Bivens action, as “[i]n this case, where the
only ‘act’ by the defendants was to comply
with a lawful levy from the Internal
Revenue Service, no reasonable person
could conclude that the defendants can fairly
be characterized as government actors.”).
3. Plaintiff’s Authorization of the State
Farm Defendants’ Actions
The State Farm defendants argue that
because plaintiff’s account documentation
expressly authorized the State Farm
defendants to comply with levies to the
account, plaintiff cannot bring the present
action. The Court agrees that, even if
plaintiff’s claims were not barred as
discussed supra, plaintiff’s claim is barred
by the terms of his contract with the bank.
Since plaintiff challenges the authority
by which State Farm released money from
plaintiff’s account, his agreement with State
Farm is integral to the complaint. The State
Farm defendants have submitted two
certificates of “Time Deposit Application”
made by plaintiff. “Where, as in this case,
certain documents are integral to the
complaint, [the Court considers] those
documents in deciding the merits of the
motion.” Interpharm, Inc. v. Wells Fargo
Bank, N.A., 655 F.3d 136, 141 (2d Cir.
2011).
Plaintiff had notice of these
documents and does not challenge the
authenticity of these documents in his
opposition. See Schnall v. Marine Midland
Bank, 225 F.3d 263, 266 (2d Cir. 2000)
(considering
plaintiff’s
Cardholder
Agreement, account history and monthly
statements on a motion to dismiss, as
integral to the complaint).
To the extent plaintiff attempts to argue
that the State Farm defendants were engaged
in a conspiracy pursuant to § 1983, the
Court finds that any such allegations are
wholly conclusory.
Such “general
allegations” do not survive a motion to
dismiss. Green, 2007 WL 4322780 at *3.
Because plaintiff’s complaint does not
adequately allege state action under § 1983,
plaintiff’s claim against the State Farm
defendants must be dismissed.12
Each application includes a signature
card signed by the plaintiff. The signature
cards expressly state that
[b]y signing this document, the
undersigned acknowledges that
he/she is applying to open the type of
account designated above and he/she
agrees that such account, when
12
In addition, “there is no requirement that a
garnishee bank be required to investigate the validity
of a restraining notice served upon it.” McCarthy v.
Wachovia Bank, N.A., 759 F. Supp. 2d 265,
(E.D.N.Y. Jan. 11, 2011). To the extent plaintiff
alleges a violation of a constitutional right based on
the State Farm defendants’ failure to investigate the
validity of the warrants, such a claim must be
dismissed.
9
opened by State Farm Bank® will be
subject to and he/she agrees to be
bound by the terms, conditions,
disclosures and agreements set forth
in State Farm Bank’s Disclosures
and Customer Agreements and
Pricing Schedule for Consumer and
Business
Deposit
Accounts
pamphlets (which will be provided
separately), including, but not
limited to State Farm Bank’s Deposit
Account Agreement . . . . The
undersigned agrees to contact State
Farm Bank immediately upon receipt
of the Disclosures and Customer
Agreements and Pricing Schedule for
Consumer and Business Deposit
Accounts pamphlets if he/she does
not agree with the terms.
your account, such penalty, charge or
fee will be assessed against your
account as if You had voluntarily
withdrawn the funds or closed your
account.
(SF Defs.’ Ex. G, Disclosures and Customer
Agreements, June 2, 2011, ECF No. 34-10
at 2.)
Thus, the contract between plaintiff and
State Farm Bank expressly authorized the
State Farm defendants to comply with a levy
against plaintiff’s account.
“[I]t is a
fundamental principle of contract law that a
person who signs a contract is presumed to
know its terms and consents to be bound by
them.” Paper Express, Ltd. v. Pfankuch
Maschinen GMBH, 972 F.2d 753, 757 (7th
Cir. 1992). “It is black letter law that parties
are legally ‘bound by the contracts they sign
whether or not the party has read the
contract as long as there is no fraud, duress
or some other wrongful act of the other
party.’” McCarthy, 759 F. Supp. 2d at 273
(quoting Tuskey v. Volt Info. Scis., Inc., No.
00Civ7410, 2001 WL 873204, at *3
(S.D.N.Y. Aug. 3, 2001) (collecting cases)).
(SF Defs.’ Ex. F, Certificates of Time
Deposit Application Materials, ECF No. 349, at 5, 9.)13 State Farm Bank’s Deposit
Account Agreement includes a section titled
“Garnishments, Levies, and Attachments,”
which states
[State Farm Bank] may use the funds
in your account to satisfy a
garnishment, levy, attachment, or
other Legal Notice of any person
named on the account. [State Farm
Bank] may waive any objections,
including
paper
service,
in
responding to such notices. . . . Any
expenses arising from attachment,
garnishment or levy of your account
will be your responsibility. If You
would be assessed a penalty, charge
or fee for withdrawing funds or
closing your account at the time
funds are remitted pursuant to an
attachment, garnishment or levy of
In his opposition papers, plaintiff does
not dispute that he signed the application
that included the reference to the Deposit
Account Agreement or that he received the
Deposit Account Agreement which included
the language regarding garnishment. As
such, plaintiff authorized the State Farm
defendants’ conduct.
Plaintiff’s claims
against the State Farm defendants must be
dismissed. See McCarthy, 759 F. Supp. 2d
at 273-74.
IV. LEAVE TO RE-PLEAD
Although plaintiff has not requested
leave to amend or re-plead his complaint,
the Court has considered whether plaintiff
should be considered an opportunity to re-
13
Because the State Farm defendants’ Exhibit F does
not include page numbers, the ECF page numbers are
given.
10
granted, and the complaint is dismissed in its
entirety. The Clerk of the Court shall enter
judgment accordingly and close the case.
The Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal taken from this
order would not be taken in good faith, and
therefore in forma pauperis status is denied
for purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
plead. The Second Circuit has emphasized
that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave to
amend at least once when a liberal
reading of the complaint gives any
indication that a valid claim might be
stated.
SO ORDERED.
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). However,
even under this liberal standard, the Court
finds that any attempt to amend the pleading
in this case would be futile. As discussed in
detail supra, plaintiff’s claims against the
DTF defendants are barred by the Eleventh
Amendment and the Rooker-Feldman
doctrine. Plaintiff’s claims against the State
Farm defendants are barred by RookerFeldman, the state action requirement of 42
U.S.C. § 1983, and plaintiff’s contract with
State Farm Bank.
Accordingly, it is
abundantly clear that no amendments can
cure these (and other) defects in this case,
and any attempt to re-plead 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.
Re-pleading would thus be futile. Such a
futile request should be 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 his
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied.”).
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 15, 2012
Central Islip, NY
***
Plaintiff is proceeding pro se. Defendants
New York State Department of Taxation and
Finance and Edward Brehm are represented
by Eric Schneiderman, Attorney General of
the State of New York, by Anne C. Leahey
and Lori L. Pack, Assistant Attorney
Generals, 300 Motor Parkway, Suite 205,
Hauppauge, NY 11788. Defendants State
Farm Bank, F.S.B. and Tammie Hildreth are
represented by Brian Laurence Bank and
Evan H. Krinick, Rivkin Radler LLP, 926
RXR Plaza, Uniondale, NY 11556.
V. CONCLUSION
For the foregoing reasons, the
defendants’ pending motions to dismiss are
11
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