Merchant v. Long Island Newsday LLC et al

Filing 7

MEMORANDUM & ORDER re: Plaintiff's 2 Motion for Leave to Proceed in forma pauperis is GRANTED and Plaintiff's 6 Motion to Permit Access to law library and subpoenas is DENIED AS MOOT. However, the Complaint is sua sponte DISMISSED WITH PREJUDICE for failure to state a claim. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for the purpose of any appeal. This case is CLOSED. Ordered by Judge Joanna Seybert on 5/28/2014. (C/M Plaintiff w/copy of Westlaw case 2010 WL 3419659) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
JERRY MERCHANT,
Plaintiff,

MEMORANDUM & ORDER
14-CV-1674(JS)(AKT)

-againstLONG ISLAND NEWSDAY LLC, KEVIN
DEUISCH, and HOWARD SCHNAPP,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Jerry Merchant, pro se
1006880
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

No appearances

SEYBERT, District Judge:
On March 12, 2014, incarcerated pro se plaintiff Jerry
Merchant (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 (“Section 1983”) against Long Island Newsday, LLC
(“Newsday”),
(“Schnapp”)

Kevin

Deuisch

(collectively,

(“Deuisch”),
“Defendants”),

and

Howard

accompanied

Schnapp
by

an

application to proceed in forma pauperis.
Upon

review

of

the

declaration

in

support

of

the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of

the

filing

fee.

See

28

U.S.C.

§§

1914(a);

1915(a)(1).

Therefore, Plaintiff’s request to proceed in forma pauperis is
GRANTED.
sua

However, for the reasons that follow, the Complaint is

sponte

DISMISSED

WITH

PREJUDICE

pursuant

to

28

U.S.C.

§§ 1915(e)(2)(B)(ii), 1915A(b)(1).
BACKGROUND1
Plaintiff’s brief, handwritten Complaint, submitted on
the Court’s Section 1983 complaint form, complains about an article
written by Deuish with a photograph taken by Schnapp, concerning
Plaintiff

that

specifically,

ran

in

Newsday

Plaintiff

was

on

September

named

in

an

22,

2013.

article

More

about

the

arraignment of six people, including Plaintiff, the day after a
courtroom fight broke out between supporters of a murder suspect
and those of the victim at the District Court in Hempstead, New
York.

Plaintiff

was

one

of

several

photographs accompanying the article.

people

pictured

in

the

According to Plaintiff, the

Newsday article “intentionally promoted fraudulent news” because
Plaintiff was not arraigned for felony rioting as was reported.
Rather, Plaintiff acknowledges that he was arraigned for “Criminal
Contempt,

Riot

in

the

Second

[Degree],

Resisting

Obstructing of Government Admin. and Disorderly conduct.”

Arrest,
(Compl.

at 5.)
As a result, Plaintiff seeks to recover “millions”.
(Compl.

¶

Plaintiff’s

V.)
name

Plaintiff

also

and

by

image

demands
printing

that
a

Newsday

“complete

clear

article

explaining [its] errors, and Plaintiff’s talents and business.”
1

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

(Compl. ¶ V.)
DISCUSSION
I.

In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the

application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified 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 upon 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(b).

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 Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).

“A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to
3

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
a 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.’”
at

Iqbal, 556 U.S.

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
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
4

(2d Cir. 1999)).
A.

State Action
Section 1983 “constrains only state conduct, not the

‘acts of private persons or entities.’”

Hooda v. Brookhaven Nat’l

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

Accordingly, “a litigant claiming that his

constitutional rights have been violated must first establish that
the challenged conduct constitutes state action.” Flagg v. Yonkers
Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005) (internal
quotation marks and citation omitted); Fabrikant v. French, 691
F.3d 193, 206 (2d Cir. 2012) (“A plaintiff pressing a claim of
violation of his constitutional rights under Section 1983 is . . .
required to show state action.” (internal quotation marks and
citation omitted)). Indeed, “the under-color-of- state-law element
of § 1983 excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.”

Am. Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 985, 143 L. Ed. 2d 130
(1999) (internal quotation marks and citation omitted).
Private actors, such as the Defendants, may be considered
to be acting under the color of state law for purposes of § 1983 if
the private actors were “‘willful participant[s] in joint activity
with the State or its agents.’”

Ciambriello v. Cnty. of Nassau,

292 F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress &
5

Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1606, 26 L. Ed. 2d 142
(1970)). Section 1983 liability may also extend to a private party
who

conspires

with

a

constitutional rights.

state

actor

to

violate

a

plaintiff’s

Ciambriello, 292 F.3d at 323-24.

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 324-25 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
Here,

Plaintiff

does

not

allege

that

any

of

the

Defendants acted under color of state law or acted jointly with a
state actor.

Nor are there any facts from which the Court could

reasonably construe a conspiracy claim.

Thus, in the absence of

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

Ciambriello, 292

F.3d at 325; see also Sanders v. Long Island Newsday, 09-CV-2393,
2010 WL 3419659, *5 (E.D.N.Y. Aug. 27, 2010) (dismissing Section
1983 claims against Newsday finding that “actions by journalists in
publishing a newspaper article, even if those actions include
interviewing prosecutors or police officers, do not constitute
state action . . . .”).

Accordingly, Plaintiff’s Section 1983

claims against the Defendants are DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b)(1).
6

CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED, however the Complaint is
sua sponte DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
Plaintiff’s

motion

seeking

an

order

permitting

law

library access and subpoenas (Docket Entry 6) is subsequently
DENIED AS MOOT.
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).
The Clerk of the Court is directed to mail a copy of this
Memorandum and Order to the pro se Plaintiff and to mark this case
closed.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

May
28 , 2014
Central Islip, New York

7