Lansbury v. Massey et al
ORDER: For the forgoing reasons (please see order for further details), the Plaintiff's application to proceed in forma pauperis is granted. However, plaintiff's complaint is dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2 )(B)(i)-(ii) and 1915A(b)(1) for failure to state a claim for relief. Leave to amend the complaint is denied. 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 i n forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk of Court shall enter judgment accordingly, mail a copy of this Order to the Plaintiff at his last known address, note such mailing on the docket, and close this case. So Ordered by Judge Joan M. Azrack on 1/18/2023. (GO)
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 1 of 6 PageID #: 21
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
For Online Publication
1/18/2023 4:14 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
-againstMASSEY, MARIA B, Supervisor;
AZRACK, District Judge:
On October 21, 2022, incarcerated pro se plaintiff Allan Lansbury (“Plaintiff”) filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) against “Massey” and “Maria B”
who is identified as a “supervisor” at Massey, located at 1251 1th Avenue in Chippewa Falls,
forma -----pauperis (“IFP”). (See Complaint,
Wisconsin 1 together with an application to proceed -in ---ECF No. 1, IFP App., ECF No. 2.) Given that Plaintiff did not file the required Prisoner Litigation
Authorization form (“PLRA”), by Notice of Deficiency dated October 24, 2022, Plaintiff was
instructed to complete and return the enclosed PLRA in order for the case to proceed. (See ECF
No. 3.) On November 3, 2022, Plaintiff timely filed the PLRA. (See ECF No. 6.)
Upon review of the declaration accompanying Plaintiff’s IFP application, the Court finds
that Plaintiff’s financial status qualifies him to commence this action without prepayment of the
filing fee. See 28 U.S.C. § 1915(a)(1). Accordingly, for the reasons that follow, the Court grants
Plaintiff’s IFP application and sua sponte dismisses the complaint pursuant to 28 U.S.C. §§
Plaintiff’s brief, handwritten complaint is submitted on the Court’s Section 1983 complaint
The Court understands that Plaintiff intends to sue Masseys, an on-line retailer with that address. See
https://www.masseys.stoneberry.com (last visited on January 18, 2023).
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 2 of 6 PageID #: 22
form. In its entirety, Plaintiff’s statement of claim alleges that, on April 3, 2019: 2
Somebody order some stuff on line using my name and my account number from
the company Massey I didn’t give any primition for my account to be use by anyone
or for anything at any time.
(Compl. at 4, ¶ II.) Plaintiff left blank the space on the form complaint that calls for a description
of any injuries. (Id. at 4, ¶ II.A.) For relief, Plaintiff “would like for my account to be cleared
or to be pay $75,100.” (Id. at 5, ¶ III.)
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of his application to proceed in forma
pauperis, the Court finds that Plaintiff is qualified to commence this action without prepayment of
the filing fee. 28 U.S.C. § 1915(a)(1). Therefore, Plaintiff’s application to proceed in forma
pauperis is granted.
Standard of Review
The Prison Litigation Reform Act requires a district court to screen a civil complaint
brought by a prisoner against a governmental entity or its agents and dismiss the complaint, or any
portion of the complaint, if the complaint is “frivolous, malicious, or fails to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Similarly, pursuant to the in forma
pauperis statute, a court must dismiss an action if it determines that it “(i) is frivolous or malicious,
(ii) fails to state a claim upon which relief may be granted, or (iii) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The Court must dismiss
the action as soon as it makes such a determination. 28 U.S.C. § 1915A(b).
Excerpts from the Complaint are reproduced here exactly as they appear in the original. Errors in spelling,
punctuation, and grammar have not been corrected or noted.
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 3 of 6 PageID #: 23
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); -see --also -------------Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997).
addition, the court is required to read a 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 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).
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
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 4 of 6 PageID #: 24
Constitution and laws, shall be liable to the party injured….
42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Thomas v. Roach,
165 F.3d 137, 142 (2d Cir. 1999). In order to state a § 1983 claim, a plaintiff must allege two
essential elements. First, 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) (quoting Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994)); see
- -------- - -Ins.
- - -Co.
- - v.
- - - - - 526 U.S.
40, 50 (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). Second, “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.; see also
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
Lack of State Action
As noted above, to state a plausible Section 1983 claim, a plaintiff must allege that the
challenged conduct was committed by a person acting under color of state law. Thus, private
parties are not generally liable under Section 1983. Here, the defendants are a private retailer and
an employee alleged to be a supervisor there. (See Compl., ECF No. 1.) Private conduct is
generally beyond the reach of § 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 4950 (1999); Coleman v. City of N.Y., et al., 18-CV-11819, 2020 WL 905709, *3 (S.D.N.Y. Feb.
25, 2020) (dismissing Section 1983 claims against Dollar Tree Store, Inc., and several of its
employees, because they are not state actors and did not operate under color of state law); Fletcher
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 5 of 6 PageID #: 25
v. Walmart Stores, Inc., 15-CV-1859, 2006 WL 2521187, at *4 (S.D.N.Y. Aug. 28, 2006)
(dismissing Section 1983 claims against Walmart Stores, Inc. and several of its employees,
including its private security guard, because none of the defendants were state actors, nor were
they acting under color of law); Guiducci v. Kohl’s Dep’t Stores, Inc., 320 F. Supp. 2d 35, 37-39
(E.D.N.Y. 2004) (dismissing Section 1983 claims because “the Kohl’s security guard is not a state
actor within the meaning of the civil rights statute”) (collecting cases)).
Given that Plaintiff names purely private defendants, his Section 1983 claims are not
plausible. An essential element of a Section 1983 claim is state action. See, e.g., Cornejo, 592
F.3d at 127; Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (a plaintiff must
also show that the defendant was either a state actor, or a private individual who acted “under color
of state law”). However, private individuals who are not state actors may be liable under Section
1983 if they have conspired with or engaged in joint activity with state actors. Ciambriello, 292
F.3d at 323; Stewart v. Victoria’s Secret Stores, LLC, 851 F. Supp. 2d 442, 445 (E.D.N.Y. 2012).
As is readily apparent, Plaintiff’s sparse allegations do not include any facts from which the Court
could reasonably construe a basis to find state action. Thus, Plaintiff’s Section 1983 claims are
implausible and are thus dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915(A)(b)(1).3
Given the dismissal of Plaintiff’s federal claims, the Court declines to exercise
supplemental jurisdiction over any remaining state laws claims Plaintiff may have and any such
claims are thus dismissed without prejudice. See 28 U.S.C. § 1367(c)(3); see also Carnegie
Mellon Univ. v. Cohill, 484 U.S. 343 (1988) (“[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
Moreover, Plaintiff has not alleged a constitutional deprivation. Given that neither prong of a plausible
Section 1983 is met, Plaintiff’s Section 1983 claims are not plausible and are thus dismissed.
Case 2:22-cv-06447-JMA-ST Document 9 Filed 01/18/23 Page 6 of 6 PageID #: 26
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.”).
2. Leave to Amend
Given the Second Circuit’s guidance that a pro se complaint should not be dismissed
without leave to amend unless amendment would be futile, Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000), the Court has carefully considered whether leave to amend is warranted here.
Because the defects in Plaintiff’s claims are substantive and would not be cured if afforded an
opportunity to amend, leave to amend the Complaint is denied.
For the forgoing reasons, the Plaintiff’s application to proceed -in forma
pauperis is granted.
- - - -----However, plaintiff’s complaint is dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)(ii) and 1915A(b)(1) for failure to state a claim for relief. Leave to amend the complaint is denied.
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).
The Clerk of Court shall enter judgment accordingly, mail a copy of this Order to the
Plaintiff at his last known address, note such mailing on the docket, and close this case.
January 18, 2023
Central Islip, New York
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE
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