Crews v. CVS Incorperated et al

Filing 10

MEMORANDUM & ORDER granting 2 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED, however Plaintiff's Section 1983 claims against CVS and Mida s are 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 claims against P.O. Mathews shall proceed. Accordingly, the Court ORDERS that the Clerk of the Court issue a summons for P.O. Mathews and DIRECTS that the summons together with copies of the Complaint and this Order be forwarded to the United States Marshal Service for service upon P.O. Mathews forthwith. 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. The Clerk of Court is directed to mail a copy of this Order to the Pro Se Plaintiff. So Ordered by Judge Joanna Seybert on 6/6/2017. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHAUN CREWS,
Plaintiff,

MEMORANDUM & ORDER
16-CV-7209(JS)(SIL)

-againstCVS INCORPORATED, MIDAS
INCORPORATED, and SCPO MATHEWS
CODY Badge #6430/710/3,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Shaun Crews, pro se
16-A-5017
Great Meadow Correctional Facility
P.O. Box 51
Comstock, NY 12821-0051
For Defendants:

No appearances.

SEYBERT, District Judge:
On December 27, 2016, incarcerated pro se plaintiff Shaun
Crews (“Plaintiff”) filed a Complaint in this Court pursuant to 42
U.S.C. § 1983 (“Section 1983”) against CVS Incorporated (“CVS”),
Midas Incorporated (“Midas”), and Suffolk County Police Officer
Mathews Cody, Badge #6430/710/3 (“P.O. Mathews”1 and collectively,
“Defendants”), accompanied by an application to proceed in forma
pauperis.
Upon

1

review

of

the

declaration

in

support

of

the

Plaintiff spells this Defendant’s name inconsistently
throughout the Complaint. The caption reads “Mathews Cody”, the
“Defendants” section of the Complaint reads “Mattews Cody”, and
the body of the Complaint refers to this Defendant as Officer
“Mathews”. (Compl. ¶ II.) For clarity, the Court will refer to
this Defendant as “P.O. Mathews”.

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. § 1915(a)(1).

Therefore,

Plaintiff’s request to proceed in forma pauperis is GRANTED.
However, for the reasons that follow, the Complaint is sua sponte
DISMISSED AS AGAINST CVS INC. AND MIDAS INC. pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii), 1915A(b) for failure to state a claim for
relief.
BACKGROUND2
Plaintiff’s

brief

Complaint,

alleges,

that

he

was

assaulted by employees from CVS and Midas as well as P.O. Cody on
February 29, 2016.

(Compl. ¶ II.)

According to the Complaint,

Plaintiff was followed from a CVS store by a CVS employee to a
Midas store and the CVS employee accused Plaintiff of stealing
merchandise from the CVS store.

(Compl. ¶ II.)

Plaintiff alleges

that the CVS employee “pushed [him] to the ground causing [him]
back and knee pain.”

(Compl. ¶ II.)

At that point, Plaintiff

describes that the “owner of the Midas” came over and hit Plaintiff
as he tried to get up from the ground.

(Compl. ¶ II.)

Plaintiff

fell back down but then “managed to get back up and flee on my
bike.”

(Compl. ¶ II.)

Plaintiff was then “detained by Suffolk

County Police which now I know as SCPO Cody Mathews #6430/710/3.”
2

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. ¶ II.)

According to the Complaint, P.O. Cody instructed

Plaintiff “to sit on the ground which I refused thats when Officer
Cody Mathews grabbed and then hit me in my testicles.
the ground thats when he hit me in my back.”
Plaintiff also alleges that he was “called
racial

slurs.

(Compl.

at

5.)

I fell to

(Compl. ¶ II.)

derogatory words” and

According

to

the

Complaint,

Plaintiff was taken to Southside Hospital for medical treatment
after this incident on February 29, 2016 and that he continued to
receive

medical

Facility.

treatment

at

the

Suffolk

County

Correctional

(Compl. ¶¶ II, II.A, and at 5.)
Plaintiff also claims that he complained to Internal

Affairs

about

investigation

the

incident

“by

Lt.

Lutz

described
of

above

Suffolk

and

County

although

the

Headquarters”

concluded that there was “a violation of [Plaintiff’s] civil
rights”, “it was covered up.”

(Compl. at 5.)

For relief,

Plaintiff seeks to recover a monetary award of $150,000 from each
Defendant.

(Compl. ¶ III.)
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.
3

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
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
4

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, 566 U.S. 356, 361, 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. Cty. 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)).
A.

Claims Against CVS and Midas
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
5

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 CVS and Midas, may be considered
to be acting under the color of state law for purposes of § 1983 if
the private actor was a “‘willful participant in joint activity
with the State or its agents.’” Ciambriello v. Cty. of Nassau, 292
F.3d 307, 324 (2d Cir. 2002) (quoting Adickes v. S.H. Kress & 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

state

constitutional rights.

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.”
6

Id.

at 324-25 (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999)).
Here, Plaintiff does not allege that CVS and/or Midas,
both of which are private entities, acted jointly with a state
actor or conspired with a state actor to deprive Plaintiff of some
constitutional right.

Thus, in the absence of any state action,

Plaintiff’s Section 1983 claims against CVS and Midas are not
plausible as a matter of law.

Ciambriello, 292 F.3d at 325.

Accordingly, Plaintiff’s Section 1983 claims against CVS and Midas
are

DISMISSED

WITH

PREJUDICE

pursuant

§§ 1915(e)(2)(B)(ii); 1915A(b)(1).

to

28

U.S.C.

However, the dismissal of

Plaintiff’s Section 1983 claims against CVS and Midas is without
prejudice

to

Plaintiff

pursuing

any

valid

state

law

claims

Plaintiff may have against these entities in state court.
B.

Claim Against P.O. Mathews
Though thin, the Court declines to sua sponte dismiss

Plaintiff’s claims against P.O. Mathews at this early stage in the
proceedings.

Accordingly, the Court ORDERS that the Clerk of the

Court issue a summons for P.O. Mathews and DIRECTS that the
summons, together with copies of the Complaint and this Order be
forwarded to the United States Marshal Service for service upon
P.O. Mathews forthwith.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
7

to proceed in forma pauperis is GRANTED, however Plaintiff’s
Section 1983 claims against CVS and Midas are 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).

However, such dismissal is

without prejudice to Plaintiff pursuing any valid claims he may
have against CVS and Midas in state court.
against P.O. Mathews shall proceed.

Plaintiff’s claims

Accordingly, the Court ORDERS

that the Clerk of the Court issue a summons for P.O. Mathews and
DIRECTS that the summons together with copies of the Complaint and
this Order be forwarded to the United States Marshal Service for
service upon P.O. Mathews forthwith.
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
Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: June
6
, 2017
Central Islip, New York

8