Pietsch v. Marcantonio et al

Filing 7

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff's application to proceed in forma pauperis is GRANTED. Plaintiff's claims against the Commission, the RNC, and the DNC are sua sponte DISMISSED WIT HOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), and Plaintiff may seek to amend his Complaint to add one of these entities if he discovers, at a later date, that one of them was P.O. Marcantonio's employer on the date at issue. Plaintiff's claims against Hofstra and Rabinowitz are DISMISSED WITHOUT PREJUDICE, and Plaintiff is granted leave to re-plead against these Defendants in an Amended Complaint to be filed within thirty (30) days from the date o f this Order. If Plaintiff fails to do so, such claims will be dismissed with prejudice. Finally, Plaintiff's claims against P.O. Marcantonio shall proceed, and Plaintiff shall provide the Court, in writing, with an address for service upon P.O. Marcantonio within thirty (30) days from the date of this Order. No Summons shall issue at this time. Once Plaintiff provides the service address for P.O. Marcantonio to the Court, the Clerk of the Court shall forward it to the U.S. Marshal Service together with copies of the Summons, Complaint, and this Order for service upon P.O. Marcantonio. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff. 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. So Ordered by Judge Joanna Seybert on 11/18/2013. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
WALTER G. PIETSCH,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4696(JS)(WDW)

-againstPOLICE OFFICER VITO MARCANTONIO,
Shield # 299, HOFSTRA UNIVERSITY,
COMMISSION ON PRESIDENTIAL
DEBATES, DEMOCRATIC NATIONAL
COMMITTEE, and REPUBLICAN
NATIONAL COMMITTEE,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Walter G. Pietsch, pro se
3379 Woodward Avenue
Wantagh, NY 11793
For Defendants:

No appearances.

SEYBERT, District Judge:
On August 21, 2013, pro se plaintiff Walter G. Pietsch
(“Plaintiff”) filed an in forma pauperis civil rights Complaint
pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Police
Officer

Vito

Marcantonio,

Shield

#

299

(“P.O.

Marcantonio”),

Hofstra University (“Hofstra”), Stuart Rabinowitz (“Rabinowitz”)1,
the

Commission

on

Presidential

Debates

(“Commission”),

the

Democratic National Committee (“DNC”), and the Republican National
Committee (“RNC” and collectively, “Defendants”).
1

Upon review of

Although Plaintiff names only Hofstra in the caption of his
Complaint, he lists Rabinowitz, President of Hofstra, as a party
on page 2 of his Complaint. Given the liberal construction
afforded to pro se pleadings, the Court so construes the
Complaint to name Rabinowitz as a Defendant in this case and the
Clerk of Court shall amend the caption accordingly.

the declaration accompanying Plaintiff’s application to proceed in
forma pauperis, the Court finds that Plaintiff’s financial status
qualifies him to commence this action without prepayment of the
filing fees. See 28 U.S.C. § 1915(a)(1). Accordingly, Plaintiff’s
application to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, Plaintiff has
failed to allege a plausible claim against Hofstra, Rabinowitz, the
Commission, the DNC, and the RNC.

Accordingly, Plaintiff’s claims

against these Defendants are DISMISSED WITHOUT PREJUDICE pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff is granted leave to

re-plead against Hofstra and Rabinowitz within thirty (30) days
from the date of this Order, and may amend his Complaint to add the
Commission, the DNC, or the RNC should he discover, at a later
date, that P.O. Marcantonio was employed by any of these entities
on the date in question.

Plaintiff’s Complaint shall proceed

against P.O. Marcantonio, and Plaintiff shall provide the Court
with an address for P.O. Marcantonio in writing within thirty (30)
days from the date of this Order, in order to permit the United
States Marshals Service (“USMS”) to serve copies of the Summons,
Complaint, and this Order upon P.O. Marcantonio.
BACKGROUND2
Plaintiff claims that, on October 16, 2012, he visited
2

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

Hofstra’s campus with an “old hand cart” containing fliers he had
planned to distribute to attendees of the Presidential Debate
scheduled for later that evening.

(Compl. at 5.)

Plaintiff

complains that he “was stopped by an individual wearing a white
shirt and dark blue law enforcement type pants.”

(Id.)

The

individual was “in his mid-30s,” “wore no hat,” “was completely
bald,” had “Shield #299 pinned to his shirt,” and “said his name
was ‘Vito Marcantonio.’”

(Id.)

According to the Complaint, P.O.

Marcantonio told Plaintiff to “leave immediately, or you will be
arrested,” and Plaintiff “left, upset and very angry.”

(Id. at 5-

6.)
Later that evening, Plaintiff returned to the Hofstra
campus and joined a “mini-Forum . . . for those who could not get
into the main [Presidential] debate.”

(Id. at 6.)

According to

Plaintiff, he “unveiled [his] three-phase vision to make our
country a true, caring democracy run by the people.”
three

phases

are

alleged

to

be:

“(1)

Equal

(Id.)

Media

The

Access

Constitutional Amendment; (2) Employee/Consumer Control of all
Institutions; and (3) The Dr. Martin Luther King, Jr. ‘Dream
Dollar’ (to be added to the national currency to create millions of
jobs . . . .”
phase

of

(Id.)

Plaintiff’s

When asked if the attendees supported each
proposal,

Plaintiff

claims

everyone there raised their hands in support. . . .”

that

“almost

(Id.)

Given

this showing of support, Plaintiff surmises that “had the audience
3

at the actual Presidential Debate been given the opportunity to
review my proposed Constitutional Amendment and then raise the
question from the floor as to whether or not each candidate
endorsed or opposed it, the entire 2012 Presidential Election might
have concluded very differently.”

(Id. at 7.)

Plaintiff next describes that, “[t]he night after the
Presidential Debate, at about 1:00 a.m., I awoke bolt upright,
finding myself totally unable to breathe and certain I was going to
die.”

(Id.)

Plaintiff was taken by ambulance to the hospital,

where he was admitted with “dangerously low” blood pressure and
remained under the care of a cardiologist for the next three days.
(Id.)

Approximately six months later, in the beginning of April,

Plaintiff alleges that he realized that he had suffered “severe
physical and emotional damage as a result of the confrontation with
[P.O.] Marcantonio.”

(Id.)

In an effort to determine the “full identity of the
Lawman who called himself ‘Vito Marcantonio,’” Plaintiff contacted
Hofstra and was advised that “Homeland Security was responsible for
all security related to the Debate on 10/16/12.”

(Id.)

Plaintiff

then recounts his efforts to ascertain the identity of the employer
of P.O. Marcantonio, beginning with his inquiry to “Homeland
Security’s Federal Protective Mega-Center.” (Id. at 8.) Plaintiff
claims

that

he

was

advised

that

Homeland

Security

responsible for security at the Hofstra debate.
4

was

not

Accordingly,

Plaintiff describes the inquiries that he again made to Hofstra, as
well as to the Nassau County Police Department, the Secret Service,
the FBI, the Associated Press, Newsday, CNN, the New York Times,
and the Commission on Presidential Debates, none of which have
provided the requested information.

(Id. at 8-10.)

Given the

difficulty Plaintiff has experienced in determining the identity
and employer of this “phantom lawman,” Plaintiff concludes that
there must be a “coverup” concerning this individual and claims
that “Hofstra’s President, himself, was involved in the coverup.”
(Id. at 9.)
As a result of the foregoing, Plaintiff claims to have
suffered an “increased” stress level that has “compounded other,
[unspecified] pre-existing conditions.”

(Id. at 10.)

For relief,

Plaintiff seeks an order compelling: (1) the “Defendants and the
media to disseminate the content of [his] flier to the American
people, particularly those who attended the Presidential Debate on
October 16, 2012”; (2) Hofstra to disclose the identity of the
“phantom

lawman”;

and

(3)

the

inclusion,

“in

all

future

Presidential elections, [of] third parties able to obtain ballot
status in at least one third of the several States [] in all
subsequent Presidential Debates . . . .”

(Id. at 11-12.)

Plaintiff also seeks to recover a damages award of $1 million and
suggests that “those responsible for amending our Constitution
seriously consider adopting [his] proposed ‘Equal Media Access
5

Constitutional Amendment.’”

(Id. at 12.)
DISCUSSION

I.

Application to Proceed In Forma Pauperis
Upon review of Plaintiff’s declaration in support of his

application to proceed in forma pauperis, the Court determines that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.
II.

Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to

dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is immune
from

such

1915A(b).

relief.

See

28

U.S.C.

§§

1915(e)(2)(B)(i)-(iii),

The Court is required to dismiss the action as soon as

it makes such a determination.

See id. § 1915A.

Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).

However, a complaint must plead sufficient

facts to “state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“A claim has facial plausibility
6

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, 678 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citations omitted).

The

plausibility standard requires “more than a sheer possibility that
defendant has acted unlawfully.” Id. at 678; accord Wilson v.
Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011).

While

“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”

Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).
III. Section 1983
Section 1983 provides that
[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; accord Rehberg v. Paulk, --- U.S. ----, 132 S.
Ct. 1497, 1501-02, 182 L. Ed. 2d 593 (2012).
under

Section

1983,

a

plaintiff

must

To state a claim

“‘allege

that

(1)

the

challenged conduct was attributable at least in part to a person
who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed under the Constitution
7

of the United States.’”

Rae v. Cnty. of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)).

Section 1983 does not create any independent

substantive right; but rather is a vehicle to “redress . . . the
deprivation of [federal] rights established elsewhere.”
Roach, 165 F.3d 137, 142 (2d Cir. 1999).

Thomas v.

Here, Plaintiff claims

that his First Amendment rights were deprived by Defendants.
A.

Claims Against Hofstra and Stuart Rabinowitz
To the extent that Plaintiff seeks to hold Hofstra and

Rabinowitz liable for alleged violations of Section 1983, his
claims are not plausible because Plaintiff fails to establish that
they are state actors for purposes of Section 1983.
In order to state a claim for relief under Section 1983,
a plaintiff must establish a deprivation of constitutional rights
by a person acting “under color of law.”

Briscoe v. LaHue, 460

U.S. 325, 329-330, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Ahlers
v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012).

It is well-

established that Section 1983 “constrains only state conduct, not
the ‘acts of private persons or entities.’”

Hooda v. Brookhaven

Nat. Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting
Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S. Ct. 2764, 2769, 73
L. Ed. 2d 418 (1982)).

Thus, “a litigant claiming that his

constitutional rights have been violated must first establish that
the challenged conduct constitutes state action.” Flagg v. Yonkers
8

Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (internal
quotation marks and citation omitted).
Although private citizens are generally not state actors
for purposes of Section 1983, liability may nevertheless be imposed
under Section 1983 upon private individuals who are deemed state
actors pursuant to a conspiracy theory.

See, e.g., Ciambriello v.

Cnty. of Nassau, 292 F.3d 307, 324-325 (2d Cir. 2002).

In order to

state a Section 1983 conspiracy claim, a plaintiff “must allege (1)
an agreement between a state actor and a private party; (2) to act
in concert to inflict an unconstitutional injury; and (3) an overt
act done in furtherance of that goal causing damages.” Id. at 324325 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
Here,

Plaintiff

fails

to

allege

that

Hofstra

or

Rabinowitz were acting under color of state law, nor are there any
facts from which the Court could reasonably construe a conspiracy
claim against either of these Defendants.

Thus, in the absence of

any allegation of state action by these Defendants, Plaintiff’s
Section 1983 claims against them are not plausible as a matter of
law.

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.

Ct. 977, 143 L. Ed. 2d 130 (1999) (“[T]he under-color-of-state-law
element of § 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.” (internal quotation
marks and citation omitted)).

Accordingly, Plaintiff’s Section
9

1983 claims against Hofstra and Rabinowitz are DISMISSED WITHOUT
PREJUDICE.
B.

Claims Against the Commission, the DNC, and the RNC
Similarly,

Plaintiff’s

allegations

against

the

Commission, the DNC, and the RNC do not support a plausible Section
1983 claim against any of these private entities.
As to the Commission, the Second Circuit has described
the Commission as “a private, non-profit corporation formed by the
Democratic and Republican parties for the purpose of sponsoring
presidential debates.”

Crist v. Comm’n on Presidential Debates,

262 F.3d 193, 194 (2d Cir. 2001) (citing Buchanan v. Fed. Election
Comm’n, 112 F. Supp. 2d 58, 61 (D.D.C. 2000)); see also Fulani v.
Brady,

729

F.

Supp.

158,

159

(D.D.C.

1990)

(describing

the

Commission as a tax-exempt organization “founded by the Chairmen of
the Democratic and Republican National Parties in order to assume
the

role

of

sponsoring

general

election

debates

between

the

presidential and vice-presidential candidates which had previously
been performed by the League of Women Voters . . . .”).

Thus, the

Commission is not a state actor for purposes of Section 1983
liability.
actors.

Similarly, neither the RNC nor the DNC are state

See Emmanuelli v. Priebus, 500 F. App’x 886, 888-89 (11th

Cir. 2012) (affirming dismissal of Section 1983 claims against the
RNC

because

appellant’s

the

RNC

statutory

is
and

not

a

state

actor

constitutional
10

for

claims);

purposes

of

Fulani

v.

McAuliffe, No. 04-CV-6973, 2005 WL 2276881, at *5 (S.D.N.Y. Sept.
19, 2005) (dismissing Section 1983 claims against the DNC because
it is a non-state actor and holding that the DNC’s “mere receipt of
public funds is insufficient to transform private entities or
individuals into state actors.” (citing Rendell-Baker 457 U.S. at
841) (additional citation omitted)).
Although there are exceptions to the general rule that a
private party does not act under color of state law, such as (1)
when a private party conspires with a state actor (see supra p. 8);
(2) when a private party receives public funds, but only under
specific, limited circumstances, see, e.g., Blum v. Yaretsky, 457
U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982); or (3)
when

a

private

entity

performs

a

public

function

that

is

“traditionally the exclusive prerogative of the [s]tate,” see,
e.g., Rendell-Baker, 457 U.S. at 842 (emphasis in original),
Plaintiff alleges no facts tending to suggest that any of those
exceptions apply to his Section 1983 claims against the Commission,
the RNC, or the DNC. Accordingly, because these Defendants are not
alleged to have acted under color of state law, Plaintiff has not
alleged a plausible claim against any of these Defendants and his
Section 1983 claims against them are DISMISSED WITHOUT PREJUDICE.3
3

In addition to the insufficiency of the allegations of state
action, Plaintiff has failed to allege that any of these
Defendants engaged in conduct rising to the level of a
Constitutional violation. Based on the Court’s reading of the
Complaint, it appears that Plaintiff named these Defendants in
11

C.

Claims Against P.O. Marcantonio
Although the allegations against P.O. Marcantonio are

thin, given Plaintiff’s pro se status, the Court declines to sua
sponte dismiss the claims against P.O. Marcantonio at this early
stage in the proceeding.

However, the USMS will not be able to

serve P.O. Marcantonio without more information.
Accordingly, Plaintiff shall provide an address for
service of the Summons and Complaint upon P.O. Marcantonio, in
writing, to the Court within thirty (30) days from the date of this
Order.

Upon receipt of such information, the Clerk of the Court

shall forward copies of the Summons, Complaint, and this Order to
the USMS for service upon P.O. Marcantonio.
IV.

Leave to Amend
Given the pleading deficiencies noted above, the Court

has considered whether Plaintiff should be granted leave to replead.

The Second Circuit has emphasized that a “court should not

dismiss [a pro se complaint] 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.”

Cuoco

v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation
marks and citations omitted).

Under Rule 15(a) of the Federal

the event that it was discovered that P.O. Marcantonio worked for
any of them on October 16, 2012. Should Plaintiff discover the
identity of P.O. Marcantonio’s employer on October 16, 2012,
Plaintiff may seek to amend his Complaint to add that employer as
a Defendant in this case if so warranted at that time.
12

Rules of Civil Procedure, the “court should freely give leave [to
amend] when justice so requires.”
As

discussed

supra,

FED. R. CIV. P. 15(a).
based

on

the

allegations

in

Plaintiff’s Complaint, the Court is unable to discern any state
action on the part of Hofstra or Rabinowitz.

Accordingly, the

Court grants Plaintiff leave to amend his Complaint to allege any
plausible claims he may have against Hofstra and Rabinowitz in
accordance with this Order. In so doing, Plaintiff must attempt to
allege

how

Hofstra

and

Rabinowitz,

as

a

private

entity

and

individual, were acting under color of state law during the
Constitutional

deprivation

alleged.

Plaintiff

must

file

his

Amended Complaint within thirty (30) days from the date of this
Order.

Any Amended Complaint shall be clearly labeled “AMENDED

COMPLAINT” and shall bear docket number 13-CV-4696(JS)(WDW).
As for the Commission, RNC, and DNC, as noted supra,
Plaintiff may seek to amend his pleadings to name either of these
entities if he discovers, at a later date, that P.O. Marcantonio
was employed by one of them on October 16, 2012.
CONCLUSION
Plaintiff’s application to proceed in forma pauperis is
GRANTED.

Plaintiff’s claims against the Commission, the RNC, and

the DNC are sua sponte DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1), and Plaintiff may seek to
amend his Complaint to add one of these entities if he discovers,
13

at a later date, that one of them was P.O. Marcantonio’s employer
on the date at issue.
Rabinowitz

are

Plaintiff’s claims against Hofstra and

DISMISSED

WITHOUT

PREJUDICE,

and

Plaintiff

is

granted leave to re-plead against these Defendants in an Amended
Complaint to be filed within thirty (30) days from the date of this
Order.
with

If Plaintiff fails to do so, such claims will be dismissed
prejudice.

Finally,

Plaintiff’s

claims

against

P.O.

Marcantonio shall proceed, and Plaintiff shall provide the Court,
in writing, with an address for service upon P.O. Marcantonio
within thirty (30) days from the date of this Order.
No Summons shall issue at this time.

Once Plaintiff

provides the service address for P.O. Marcantonio to the Court, the
Clerk of the Court shall forward it to the U.S. Marshal Service
together with copies of the Summons, Complaint, and this Order for
service upon P.O. Marcantonio.

The Clerk of the Court is directed

to mail a copy of this Order to the pro se Plaintiff.
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).
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.

Dated: November
18 , 2013
Central Islip, New York
14