Brown v. Nassau Count D.A. et al

Filing 8

MEMORANDUM and ORDER: SO ORDERED that plaintiff's application to proceed in forma pauperis in the second action is granted; the above-designated actions are sua sponte consolidated for all purposes, including trial, to proceed under docket numbe r 13-cv-4047; plaintiffs Section 1983 claims seeking release from custody are sua sponte dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, without prejudice to filing a petition see king a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq.; plaintiffs Section 1983 claims seeking damages are stayed pending termination of the underlying criminal proceedings against him; and plaintiffs Section 1983 claims against Mora lles, Robinson and ATM Real Estate are sua sponte dismissed in their entirety with prejudice pursuant to 28 U.S.C.§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief unless, within thirty (30) days from the date thi s case is re-opened, plaintiff files an amended complaint in accordance with this Order. The Clerk of Court shall: (1) reopen the lead case for the limited purpose of consolidating the first and second actions and amending the caption of the lead cas e in accordance with this Order, (2) administratively close the action under docket number 13-cv-6514; (3) administratively close the consolidated lead case, with leave to reopen within two (2) weeks of the termination of the underlying criminal proc eedings against plaintiff; and (4) pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon all parties in accordance with Rule 5(b) of the Federal Rules of Civil Procedure. No summons shall issue at this time. 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 the purpose of any appeal. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 1/23/2014. (Florio, Lisa)

,;
;

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------){
GEORGE BROWN,

Plaintiff,
MEMORANDUM AND ORDER
13-CV-4047 (SJF)(GRB)

-againstFREEPORT POLICE DEPARTMENT and
NASSAU COUNTY D.A. OF NEW YORK,
Defendant.

---------------------------------------------------------------){
GEORGE BROWN,

Plaintiff,
13-CV-6514 (SJF)(GRB)
-againstRALPHAEL MORALLES, the Superintendent,
NASSAU COUNTY DISTRICT ATTORNEY,
FREEPORT POLICE DEPARTMENT,
I sr BALDWIN PRECINCT, SERGIO,
Incorporated Freeport Village Department,
FREEPORT FIRE DEPARTMENT, PAMELA
ROBINSON, and ATM REAL ESTATE,

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

*

JAN 23 2014

*

LONG ISLAND OFFICE

Defendants.

---------------------------------------------------------------){
FEUERSTEIN, District Judge:

On July 15,2013, incarcerated prose plaintiff George Brown ("plaintiff') filed a civil
rights complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants
Freeport Police Department ("the Freeport Police") and the Nassau County D.A. of New York
("the D.A."), accompanied by an application to proceed in forma pauperis. That action was
assigned docket number 13-CV-4047 (the "first action"). By order dated October 9, 2013 (the
"October Order"): (1) plaintiffs application to proceed in forma pauperis was granted; (2)
plaintiffs Section 1983 claims seeking release from custody weresua sponte dismissed pursuant

I

to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, without
prejudice to filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et
seq.; (3) plaintiffs Section 1983 claims seeking damages were stayed pending the termination of

the underlying criminal proceedings against him; and (4) the first action was administratively
closed with leave to reopen within two (2) weeks of the termination of the underlying criminal
proceedings against plaintiff. See October Order at 5-6.
On November 20, 2013, plaintiff filed a second civil rights complaint in this Court
pursuant to Section 1983 against the Freeport Police and the D.A., as well as an additional six (6)
defendants: "Ralphael Moralles/the Superintendent" ("Moralles"); 1" Baldwin Precinct ("First
Precinct"); "Sergio!Incorporated Freeport Village Department" ("Sergio"), the Freeport Fire
Department, Pamela Robinson ("Robinson") and ATM Real Estate, accompanied by an
application to proceed in forma pauperis. The second action was assigned docket number 13CV -6514 (the "second action"). Since plaintiffs financial status, as set forth in his declaration in
support of his application to proceed in forma pauperis in the second action, qualifies him to file
the complaint without prepayment of the filing

fees,~

28 U.S.C. § 1915(a)(1), the application

to proceed in forma pauperis in the second action is granted. However, for the reasons set forth
below, the first and second actions are consolidated for all purposes; plaintiff's Section 1983
claims seeking release from custody in the second action are sua sponte dismissed without
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim
for relief; plaintiffs Section 1983 claims seeking damages in the second action are stayed
pending termination of the underlying criminal proceedings against him; and plaintiff's Section
1983 claims against Moralles, Robinson and ATM Real Estate are sua sponte dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief.
2

i

I.

The Complaints
The complaints in both actions allege that upon walking into the building in which he

resides on November 5, 2012, plaintiff smelled smoke coming from the incinerator room located
on the first floor, so he walked into that room. (Complaints in both actions ["Compls."],, IV).
Moralles, the superintendent of the building, then entered the incinerator room and, upon seeing
plaintiff, thought plaintiff had started a fire and asked him about it. (Handwritten Statements
Annexed to Complaints in both actions. ["Stats."] at 1). Plaintiff told Moralles that he did not
know anything about a fire, then left the incinerator room and went to his apartment.

CUD

As

soon as he got into his apartment, "Nassau police with the Freeport Police" arrived. (Compls.,,
IV; Stats., at 1). When plaintiff opened the door to talk with the police, they forced their way
into his apartment and searched it without a warrant. (Compls. , IV; Stats., at 2). According to
plaintiff, he was arrested without explanation, then transported by "Nassau County police" to the
First Precinct. (Compls., IV; Stats., at 2). In the first complaint, plaintiff alleges that he has
been imprisoned for a period of eight (8) months "without NO indictment." (Stat. in first action,
at 2). In the second action, plaintiff alleges that he has been imprisoned for a period of twelve
(12) months and was finally indicted on September 17,2013. (Stat. in second action, at 1).
According to plaintiff, his "B felony got dropped down to 5 A's Misdemeanors with 4 Felonys
[sic] as 2 B's and 2 C's[]" and he "(s]till don't [sic] have no Time serve [sic] or sentence to be
Discharge [sic] from Nassau County Correctional Center."

CUD

In the second action, plaintiff additionally alleges that Sergio, a Village inspector, and a
fire marshal from the First Precinct "were at [his] Apartment at the Time [of his November 5,
2012 arrest]." (Stat. in second action, at 1). According to plaintiff, he was: (I) "forced to
Confessed [sic] by The Authorities And Coecresion [sic] by Them tool [sic] as well[;]" (2)
"frustrated

* * * Intimidated[]

[and] Manipulated by them for having [him] to signed [sic] a

3

i

statement that were [sic) False And Going on video to say a False statement At The First Precinct
• • *[;]"and (3) "'Scared!' [him] To say That [he] did The Arson 2"• Degree." (!Q,) Plaintiff
alleges that he "finally remembered" that "[t]he Authorities" threatened "to have their unknown
People to retaliate [against him]" if he filed a civil rights complaint against them. (Id.) In
addition, the complaint in the second action alleges, inter alia: (I) that "these cops from the
[F)irst Precint [sic] stared at [plaintiff], While [he) was using their Mens Bathroom • • *[,)"
(Stat. in second action, at 2); (2) that "[t]hese Nassau County cops Have done Sexual Harassment
to [him] and Racist, Because [he is] An African Black American[,)" (Id.); (3) that he has been
discriminated against by the "Authorities" and the D.A. because of his race and diagnosis of
mental illness, (Compl. in second action,~ V); and (4) that he has been "Persecuted and
Retaliated" against by the police because Moralles told them that he is "a Gay Homosexual,"
(id.).
Moreover, plaintiff alleges in the second action that on October 2, 2012, as he was
entering his apartment building, Robinson, another tenant in the building, tried to spray him with
pepper spray and her son "snucked [sic] Behind [him], To put a big bruise on the Right side of
[his) face." (Stat. in second action, at 3). According to plaintiff, the Freeport Police "took
[f]orever[,)" ( id. ), to arrive after he called them, in "retaliation against [him) from • • • Moralles
And The ATM Real Estate that owns the Building[,]" fu!,), and before they arrived, Robinson
"ha[d) told all the tenant neighbors outside • • *To tell the cops[) That They didn't saw [sic]
What had happened." (Id.) Plaintiff alleges that the police would not let him press charges
against Robinson's son "[b]ecause [he] Didn't have any witnesses on [his] side And It [sic]
wasn't no camera in the building." (Stat. in second action, at 4). In addition, plaintiff alleges

4

that he once told Robinson, when they were friends, that he was "(l]ockup [sic] back in 2002 for
setting A cardboard dumpster on fire*

* *," fu!,), and Robinson "backstabbed [him] in the face

for no Reason," (id. ), by telling the police while he was making his police report about her son
that he had been "locked up for Arson several years ago in Rikers Island." (!li) According to
plaintiff, when he was arrested on November 5, 2012 and charged with arson in the second
degree, the police told him "That This is another reason why* * * [he] gotten 'blame!' [sic]* • *
Because (he had] a Previous Record For The Same thing." @)
In the section of the form complaint asking plaintiff to describe his injuries and state what
medical treatment he received, plaintiff wrote: (I) the word "None" in the complaint in the first
action, (Compl. in the first

action,~

IV.A); and (2) nothing in the complaint in the second action,

i.e., he left that section of the complaint blank, (Compl. in the second

action,~

IV.A).

In the first action, plaintiff seeks to recover damages in the amount of "$1 ,000,00" for the
time he has spent in jail and to be released from custody. (Compl. in the first

action,~

V; Stat. in

the first action, at 2). In the second action, plaintiff seeks to recover damages in the amount of
five million dollars ($5,000,000.00) "for all the Persecution And Pain[,]" and to be discharged or
released from prison. (Compl. in the second action,~ V; Stat. in the second action, at 2).

II.

Discussion
A.

Consolidation

Rule 42(a) of the Federal Rules of Civil Procedure provides that "[i]factions before the
court involve a common question of law or fact, the court may: • •

* consolidate the actions; or

[] issue any other orders to avoid unnecessary cost or delay." See Devlin v. Transportation

5

Communications International Union, 175 F.3d 121, 130 (2d Cir. 1999). District courts have
broad discretion to determine whether consolidation is appropriate,~ Johnson v. Celotex Co1p.,
899 F.2d 1281, 1284-1285 (2d Cir. 1990), and may consolidate actions under Rule 42(a)sua

sponte. See Devlin, 175 F.3d at 130. Moreover, cases may be consolidated where, as here, there
are different parties in the complaints. See Werner v. Satterlee, Stephens. Burke & Burke, 797 F.
Supp. 1196, 1211 (S.D.N.Y. 1992) ("The fact that there are different parties in this action does
not mean this case should not be consolidated."); see also Pirelli Armstrong Tire Com. Retiree
Med. Benefits Trust v. LaBranche & Co., Inc., 229 F.R.D. 395,402 (S.D.N.Y. 2004) (holding
that the fact that certain defendants are named in only one or some of the complaints to be
consolidated does not preclude consolidation).
Consolidation "should be prudently employed as a valuable and important tool of judicial
administration, * * *, invoked to expedite trial and eliminate unnecessary repetition and
confusion***." Devlin, 175 F.3d at 130 (internal quotations and citations omitted).
Nonetheless, although considerations of judicial economy generally favor consolidation,
"[c]onsiderations of convenience and economy must yield to a paramount concern for a fair and
impartial trial." Johnson, 899 F.2d at 1285; see also Chern One, Ltd. v. MN RICKMERS
GENOA, 660 F.3d 626, 642 (2d Cir. 2011); Devlin, 175 F.3d at 130 ("[E]fficiency cannot be
permitted to prevail at the expense of justice * * * .") In determining whether consolidation is
appropriate, the court must consider:
"Whether the specific risks of prejudice and possible confusion are overborne by
the risk of inconsistent adjudications of common factual and legal issues, the
burden on parties, witnesses, and available judicial resources posed by multiple
lawsuits, the length of time required to conclude multiple suits as against a single
one, and the relative expense to all concerned of the single-trial, multiple-trial
alternatives."
6

Johnson, 899 F .2d at 1285 (quotations, brackets and citations omitted).
Both actions were recently filed, have not yet proceeded to discovery and involve similar
allegations relating to purported civil rights violations by law enforcement officials relating to
plaintiffs November 5, 2012 arrest and subsequent prosecution, and there will be minimal, if
any, prejudice or confusion to the parties in consolidating these actions. Therefore, in the
interests of judicial economy and efficiency, and to minimize the expense and burden on all
parties in prosecuting and defending multiple lawsuits, the two (2) actions are consolidated for
all purposes. The actions will proceed under docket number 13-cv-4047 (the "lead case"), all
papers filed in these actions shall henceforth bear only the lead case docket number, the caption
of this consolidated action shall be amended in accordance with this Order and the action
assigned docket number 13-cv-6514 shall be administratively closed.

B.

Standard of Review

Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the in forma
pauperis statute, 29 U.S. C.§ 1915(e)(2), a district court must dismiss a complaint if it is
frivolous or malicious, fails to state a claim upon which relief may be granted or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b) and
1915(e)(2)(B). See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding both Section
1915 and Section 1915A to be applicable to a prisoner proceeding in forma pauperis).
It is axiomatic that district courts are required to read pro se complaints liberally,

Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106,97 S. Ct. 285,50 L. Ed. 2d 251 (1976)); Hogan v. Fischer, 738 F.3d

7

509, 515 (2d Cir. 2013), and to construe them "'to raise the strongest arguments that they
suggest." Gerstenbluth v. Credit Suisse Securities CUSA) LLC, 728 F.3d 139, 142-43 (2d Cir.
2013) (quotations and citations omitted). Moreover, at the pleadings stage of the proceeding, the
Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the
complaint." Harrington v. County of Suffolk, 607 F.3d 31, 33 (2d Cir. 2010); ~also Ashcroft v.
Igba!556 U.S. 662,678-79, 129 S. Ct. 1937,173 L. Ed. 2d 868 (2009).
Nevertheless, a complaint must plead sufficient facts "to state a claim to relief that is
plausible on its face." Bell Atlantic Com. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007). The pleading of specific facts is not required; rather a complaint
need only give the defendant "fair notice of what the

* * * claim is and the grounds upon which it

rests." Erickson, 551 U.S. 89, 127 S. Ct. 2197 (quotations and citation omitted); see also
Anderson News. LLC v. American Media. Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied Qv
Curtis Circulation Co. v. Anderson News. LLC, --- U.S. ----, 133 S. Ct. 846, 184 L. Ed. 2d 655
(2013) (accord). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do."' Ashcroft, 556 U.S. at 678, 129 S. Ct. 1937 (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement."' Id. (quoting Twombly, 550 U.S. at 557,
127 S. Ct. 1955); see also Pension Benefit Guaranty Com. ex rei. St. Vincent Catholic Medical
Centers Retirement Plan v. Morgan Stanley Investment Management Inc, 712 F.3d 705, 717 (2d
Cir. 2013)(accord). The plausibility standard requires "more than a sheer possibility that a
defendant has acted unlawfully." Ashcroft, 556 U.S. at 678, 129 S. Ct. 1937; see also In re
Amaranth Natural Gas Commodities Litigatio!!, 730 F. 3d 170, 180 (2d Cir. 2013).

8

C.

Section I 983

Section I 983 of Tile 42 of the United States Code provides, in relevant part:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured ....
42 U.S.C. § 1983. "Section 1983 provides a cause of action against any person who deprives an
individual of federally guaranteed rights 'under color' of state law." Filarsky v. Deli!!, - U.S.
- , 132 S. Ct. 1657, 1661, 182 L. Ed. 2d 662 (2012). Thus, to state a Section 1983 claim, a
plaintiff must allege: (I) that the challenged conduct was "committed by a person acting under
color of state law," and (2) that such conduct "deprived [the plaintiff] of rights, privileges, or
immunities secured by the Constitution or laws of the United States." Cornejo v. Bell, 592 F .3d
121, 127 (2d Cir. 2010) (quoting Pitchell v. Callao, 13 F.3d 545,547 (2d Cir. I994)); see also
Rehberg v. Paulk,--- U.S.----, 132 S. Ct. 1497, 150I-02, 182 L. Ed. 2d 593 (2012).

I.

Release from Custody

As indicated in the October Order, to the extent plaintiff again seeks to be released from
custody, such relief is not available in a Section 1983 action.

See,~

Keyes v. Juul, 270 F.

Supp. 2d 327, 330 (E.D.N.Y. 2003) ("[I]nsofar as plaintiff seeks release from custody, he can do
so only on a properly submitted petition seeking a writ of habeas corpus, not in a Section I 983
action.") See generally Preiser v. Rodriguez, 41 I U.S. 475,490, 93 S. Ct. 1827, 36 L. Ed. 2d 439
(I 973) (holding that habeas relief is the exclusive remedy for a state prisoner who challenges the
fact or duration of his confinement and seeks immediate or speedier release from custody).

9

"Requests for release from custody must be brought under the narrow remedy available in federal
habeas corpus, not through a damage action." Bak:er v. New York State Executives and Officers,
No. 12 Civ. 1090, 2012 WL 2358162, at* 2 (E.D.N.Y. June 20, 2012); see also Muhammad v.
Close, 540 U.S. 749, 750, 124 S. Ct. 1303, 158 L. Ed. 2d 32 (2004) ("Challenges to the validity
of any confinement or to particulars affecting its duration are the province of habeas corpus • •
*. ") Accordingly, plaintiff's Section 1983 claims in the second action seeking release from
custody are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to
state a claim for relief. 1

2.

Damages

Plaintiff's Section 1983 claims seeking damages in the second action are in the nature of
false arrest, false imprisonment and malicious prosecution. Where, as here, a plaintiff files a
civil rights action seeking damages, inter alia, for false arrest, false imprisonment or malicious
prosecution before the termination of the criminal proceedings against him, "it is within the
power of the district court, and in accord with common practice, to stay the civil action until the
criminal case or the likelihood of a criminal case is ended." Wallace v. Kato, 549 U.S. 384,
393-94, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007); see also Heck v. Humphrey, 512 U.S. 477,
487 n. 8, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) ("(I]fa state criminal defendant brings a
federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas
action, abstention may be an appropriate response to the parallel state-court proceedings.") "If

1

The dismissal of plaintiff's Section 1983 claims in the second action seeking release
from custody is without prejudice to plaintiff filing a petition seeking a writ of habeas corpus
pursuant to 28 U.S.C. §§ 2241, et seq.
10

•

the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction,
Heck will require dismissal [of the Section 1983 claims]; otherwise, the civil action will proceed,
absent some other bar to suit." Wallace, 549 U.S. at 394, 127 S. Ct. 1091. Accordingly,
plaintiffs Section 1983 claims in the second action seeking damages are stayed pending the
termination of the underlying criminal proceedings against him. This consolidated case shall be
administratively closed, with leave to reopen within two (2) weeks ofthe termination of the
underlying criminal proceedings against plaintiff.

PLAINTIFF IS ADVISED THAT A FAILURE TO SEEK TO REOPEN THIS
ACTION WITHIN TWO (2) WEEKS OF THE TERMINATION OF THE UNDERLYING
CRIMINAL PROCEEDINGS AGAINST HIM MAY RESULT IN THE DISMISSAL OF
HIS SECTION 1983 CLAIMS SEEKING DAMAGES IN THEIR ENTIRETY WITH
PREJUDICE.

3.

Claims against Moralles, Robinson and A TM Real Estate

"To state a claim under 42 U.S.C. § 1983, the plaintiff must show that a defendant, acting
under color of state law, deprived him of a federal constitutional or statutory right." Sykes v.
Bank of America, 723 F.3d 399,405-06 (2d Cir. 2013); see also Fabrikant v. French, 691 F.3d
193, 206 (2d Cir. 2012) ("[A]Iitigant claiming that his constitutional rights have been violated
must first establish that the challenged conduct constitutes state action.

* * * A plaintiff pressing

a claim of violation of his constitutional rights under § 1983 is thus required to show state action.

* * * State action requires both an alleged constitutional deprivation * * * and that the party
11

•

charged with the deprivation must be a person who may fairly be said to be a state actor."
(alterations, quotations and citations omitted)). Section 1983 liability may only be imposed upon
wrongdoers "who carry a badge of authority of a State and represent it in some capacity, whether
they act in accordance with their authority or misuse it." National Collegiate Athletic Ass'n v.
Tarkani!!!!, 488 U.S. 179, 191, 109 S. Ct. 454, 102 L. Ed. 2d 469 (1988)(quotations and citation
omitted); see also Hafer v. Melo, 502 U.S. 21, 28, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)
("Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who
carry a badge of authority of a State and represent it in some capacity, whether they act in
accordance with their authority or misuse it." (quotations and citations omitted)). Moralles, as
the superintendent of the building in which plaintiff lives; Robinson, as a tenant in that same
building; and ATM Real Estate, as the owner of that building, clearly were not acting "under
color of state law" for purposes of Section 1983 with respect to the conduct attributed to them in
the complaint.
Nevertheless, "[a] private actor may be liable under§ 1983 • **if there is a sufficiently
close nexus between the State and the challenged action that seemingly private behavior may be
fairly treated as that of the State itself." Sykes, 723 F .3d at 406 (quotations, internal quotations
and citations omitted); see also Fabrikant, 691 F.3d at 206-07 ("Conduct that is formally 'private'
may become so entwined with governmental policies or so impregnated with a governmental
character that it can be regarded as governmental action. * * * [T]here must be such a close nexus
between the state and the challenged action that the state is responsible for the specific conduct of
which the plaintiff complains." (quotations, alterations, emphasis and citations omitted)). "Anyone
whose conduct is fairly attributable to the state can be sued as a state actor under§ 1983."

12

•

Filarsky,- U.S.-, 132 S. Ct. at 1661; see also Fabrikant, 69! F.3d at 207 ("The fundamental
question* * * is whether the private entity's challenged actions are 'fairly attributable' to the
state." (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 73 L. Ed. 2d 418
(1982))). "Three main tests have emerged:
For the purposes of section 1983, the actions of a nominally private entity are
attributable to the state ... (I) [when] 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 state, 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 state ('the public function test')."
Fabrikant, 691 F.3d at 207 (quoting Sybalski v. lndep. Gro. Home Living Program, Inc, 546 F.3d
255, 257 (2d Cir. 2008) (alteration in original)).
Even reading the complaint liberally and drawing all reasonable inferences therefrom in
favor of the plaintiff, there is no basis on which to find that Moralles, Robinson and ATM Real
Estate were acting under color of state law for purposes of Section 1983 with respect to the conduct
attributed to them in the complaint. Accordingly, plaintiff's Section 1983 claims against Moralles,
Robinson and ATM Real Estate are dismissed with prejudice pursuant to 28 U .S.C. §§
1915(e)(2)(B)(ii) and 19!5A(b)(I) for failure to state a claim for relief, unless, within thirty (30)

days from the date this case is re-opened as set forth above, plaintiff files an amended
complaint pleading sufficient facts from which it may plausibly be inferred that Moralles, Robinson
and ATM Real Estate were acting under color of state law within the meaning of Section 1983.

13

•

III.

Conclusion
For the reasons set forth above, plaintiff's application to proceed in forma pauperis in the

second action is granted; the above-designated actions are sua sponte consolidated for all
purposes, including trial, to proceed under docket number 13-cv-404 7; plaintiffs Section 1983
claims seeking release from custody are sua sponte dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief, without prejudice to
filing a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq.; plaintiffs
Section 1983 claims seeking damages are stayed pending termination of the underlying criminal
proceedings against him; and plaintiffs Section 1983 claims against Moralles, Robinson and
ATM Real Estate are sua sponte dismissed in their entirety with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(l) for failure to state a claim for relief unless, within thirty

(30) days from the date this case is re-opened, plaintiff files an amended complaint in
accordance with this Order. The Clerk of Court shall: (I) reopen the lead case for the limited
purpose of consolidating the first and second actions and amending the caption of the lead case in
accordance with this Order, (2) administratively close the action under docket number 13-cv6514; (3) administratively close the consolidated lead case, with leave to reopen within two (2)
weeks of the termination of the underlying criminal proceedings against plaintiff; and (4)
pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this
order upon all parties in accordance with Rule S(b) of the Federal Rules of Civil Procedure. No
summons shall issue at this time.

14

•

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 the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d
21 (1962).

s/ Sandra J. Feuerstein

SO ORDERED.

Sandra J. Feuerstein
United States District Judge
Dated:

January 23, 2014
Central Islip, New York

15