Riddick v. Christine

Filing 7

ORDER: The #4 application to proceed in forma pauperis is granted. Plaintiff's federal claim is dismissed with prejudice for failure to allege a plausible claim for relief pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), 1915A(b)(1). Any state law claims Plaintiff seeks to raise, including negligence, are dismissed without prejudice. The Clerk of the Court is directed to: (1) mail a copy of this Order to the Plaintiff at his address of record, (2) enter judgment, and (3) close this case. 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 (1962).SEE ATTACHED ORDER for details. Ordered by Judge Joan M. Azrack on 9/8/2021. c/m to plaintiff (Coleman, Laurie)

Case 2:21-cv-04277-JMA-JMW Document 7 Filed 09/08/21 Page 1 of 5 PageID #: 23

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
TYSHAWN RIDDICK,
For Online Publication Only
Plaintiff,
ORDER
21-CV-04277 (JMA)(JMW)

-againstCHRISTINE,
Defendant.
----------------------------------------------------------X
AZRACK, District Judge:

On July 20, 2021, incarcerated pro se plaintiff Tyshawn Riddick (“Plaintiff”) commenced
this action against Christine (“Christine” or “Defendant”) pursuant to 42 U.S.C. § 1983 (“Section
1983”) but did not remit the filing fee or file an application to proceed in forma pauperis and
Prisoner Litigation Authorization form (“PLRA”). Accordingly, by Notice of Deficiency also
dated July 20, 2021, Plaintiff was instructed to either remit the filing fee or to complete and
return the enclosed in forma pauperis application and PLRA within fourteen (14) days. On
August 4, 2021, Plaintiff timely filed an application to proceed in forma pauperis and the PLRA.
For the reasons that follow, the application to proceed in forma pauperis is granted. However,
the Court sua sponte dismisses the complaint for failure to state a plausible claim for relief
pursuant to 28 U.S.C. §§ 1915(e)(2) (B)(i)-(ii), 1915A(b)(1).
I.

BACKGROUND1
Plaintiff’s complaint is submitted on the Court’s Section 1983 complaint form and is

brief. Plaintiff alleges that, on August 23, 2019 while at a friend’s apartment located in
Riverhead, New York, he was shot in the leg. Plaintiff alleges that the lock to the main door at

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All material allegations in the complaint are assumed to be true for the purpose of this Order, see, e.g.,
Rogers v. City of Troy, New York, 148 F.3d 52, 58 (2d Cir. 1998) (in reviewing a pro se complaint for sua sponte
dismissal, a court is required to accept the material allegations in the complaint as true).

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the apartment complex was broken and alleges that the manager, Christine, failed to maintain the
door lock and, as such, allowed for the shooter to enter the building. (Compl. ¶ II.) Plaintiff
further alleges that there were several complaints made to the manager and the apartment
complex office to fix the lock. (Id. at 5.) Accordingly, Plaintiff claims that Christine was
“negligent in maintaining the main door to the Apt. and that caused me to get seriously injured.”
(Id.) For relief, Plaintiff seeks to recover a damages award in the sum of $2 million.
II.
A.

DISCUSSION
In Forma Pauperis Application
Upon review of Plaintiff’s declarations 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. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s application to proceed in
forma pauperis is granted.
B.

Standard of Review
Pro se submissions are afforded wide interpretational latitude and should be held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam); -- --- ------------- 105 F.3d 857, 860 (2d Cir. 1997).
see also Boddie v. Schnieder,

In

addition, the court is required to read the plaintiff’s pro se complaint liberally and interpret it as
raising the strongest arguments it suggests. United States v. Akinrosotu, 637 F.3d 165, 167 (2d
Cir. 2011) (per curiam) (citation omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
The Supreme Court has held that pro se complaints need not even plead specific facts;
rather the complainant “need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation
marks and citations omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do
justice.”). However, a pro se plaintiff must still plead “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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 (2009) (citations omitted). The plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. 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.’” Id. at 678 (quoting
Twombly, 550 U.S. at 555).
C.

Section 1983
Plaintiff’s claim is brought pursuant to § 1983, which requires that: (1) the conduct

challenged must have been “committed by a person acting under color of state law” Cornejo v.
Bell, 592 F.3d 121, 127 (2d Cir. 2010) (internal citation and quotation marks omitted); and (2) the
conduct complained of “must have deprived a person of rights, privileges or immunities secured
by the Constitution or laws of the United States.” Id. As the Court can best discern from
Plaintiff’s allegations, Christine is a private person who is alleged to be a manager at the apartment
complex at issue. (See Compl. at 2, 4-5.)
It is well-established that Section 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 (1999) (internal quotation marks and citation omitted). A plaintiff, however, can establish that
a private actor was acting under color of state law by proving either: “(1) the existence of joint
activity between the private actor and the state or its agents, or (2) a conspiracy between the state
or its agents and the private actor.” Young v. Suffolk Cnty., 922 F. Supp. 2d 368, 385 (E.D.N.Y.
2013). “To establish joint action, a plaintiff must show that the private citizen and the state
official shared a common unlawful goal; the true state actor and the jointly acting private party
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must agree to deprive the plaintiff of rights guaranteed by federal law.” Anilao v. Spota, 774 F.
Supp. 2d 457, 498 (E.D.N.Y. 2011) (internal quotation marks and citation omitted)).
Alternatively, to show that there was a conspiracy between a private actor and the state or its
agents, a plaintiff must provide evidence of “(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 in furtherance
of that goal causing damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir.
2002)). These two methods of demonstrating state action -- “joint action” and “conspiracy with”
-- are “intertwined” and overlap in significant respects. Harrison v. New York, 95 F. Supp. 3d
293, 322 (E.D.N.Y. 2015) (internal quotation marks and citation omitted).
Here, Plaintiff’s Section 1983 claim against Christine is implausible because she is not
alleged to be a state actor. Nor has Plaintiff alleged any facts from which the Court could
reasonably construe a plausible Section 1983 conspiracy or joint actor claim. Thus, Plaintiff’s
Section 1983 claim against Christine is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii)
and 1915A(b)(1).
D.

State Law Negligence Claim
The Court declines to exercise supplemental jurisdiction over any state law claims,

including negligence, given the dismissal of Plaintiff’s federal claim. See 28 U.S.C. § 1367(c)
(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . .
the district court has dismissed all claims over which it has original jurisdiction . . . .”); CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine -- judicial economy, convenience, fairness, and comity -- will point toward
declining to exercise jurisdiction over the remaining state-law claims.”). Any state law claims
Plaintiff seeks to raise are dismissed without prejudice.
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III. Leave to Amend
A pro se plaintiff should ordinarily be given the opportunity “to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
Shomo v. City of New York, 579 F.3d 176 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) (internal quotation marks omitted)). Yet while “pro
se plaintiffs are generally given leave to amend a deficient complaint, a district court may deny
leave to amend when amendment would be futile.” Id. (citations omitted).
Here, given that the deficiency in Plaintiff’s claim is substantive and would not be cured
by amendment, leave to amend would be futile. Accordingly leave to amend the complaint is
denied.
IV. CONCLUSION
For the forgoing reasons, Plaintiff’s federal claim is dismissed with prejudice for failure
to allege a plausible claim for relief pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).
Any state law claims Plaintiff seeks to raise, including negligence, are dismissed without
prejudice. The Clerk of the Court is directed to: (1) mail a copy of this Order to the Plaintiff at
his address of record, (2) enter judgment, and (3) close this case. 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 (1962).
SO ORDERED.
Dated:

____/s/ (JMA)________________
Joan M. Azrack
United States District Judge

September 8, 2021
Central Islip, New York

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