Hines v. New York State Department of Labor Staff, et al.

Filing 5

ORDER & REPORT AND RECOMMENDATIONS: It is ORDERED that plaintiffs #2 Motion to proceed IFP be GRANTED FOR PURPOSES OF FILING ONLY, further it is RECOMMENDED that the #1 Complaint filed by Dashon Hines be DISMISSED WITH PREJUDICE. Pursuant to 28 U.S.C. 636(b)(1), the parties have 14 days within which to file written objections to the foregoing report. (Objections to R&R due by 6/21/2021, Case Review Deadline 6/24/2021). Signed by US Magistrate Judge Andrew T. Baxter on 6/7/2021. (Copy served upon pro se plaintiff via regular mail) (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DASHON HINES,
Plaintiff,
v.
1:21-CV-600
(DNH/ATB)

NEW YORK STATE DEPARTMENT
OF LABOR STAFF,
Defendants.
DASHON HINES, Plaintiff pro se
ANDREW T. BAXTER
United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION

The Clerk has sent to me for initial review, another pro se complaint, submitted
by plaintiff Dashon Hines. (Complaint (“Compl.”)) (Dkt. No. 1). Plaintiff has also filed
an application to proceed in forma pauperis (“IFP”). (Dkt. No. 2).
I.

IFP Application
Plaintiff declares in his IFP application that he is unable to pay the filing fee.

(Dkt. No. 2). This court finds that plaintiff meets the financial criteria for proceeding
IFP. In addition to determining whether plaintiff meets the financial criteria to proceed
IFP, the court must also consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the
case at any time if the court determines that the action is (i) frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).
In determining whether an action is frivolous, the court must consider whether

the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of
court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S.
at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has
a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been
served and has had an opportunity to respond, the court still has a responsibility to
determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)
(finding that a district court may dismiss a frivolous complaint sua sponte even when
plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain
sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555).
Notwithstanding the liberality afforded to pro se litigants, their pleadings still
must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a
complaint to make a short and plain statement showing that the pleader is entitled to
relief. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). The
Supreme Court has held that, under Rule 8, a complaint must include enough facts to

2

state a claim for relief “that is plausible on its face.” Id. A claim is facially plausible if
the plaintiff pleads enough factual detail to allow the Court to draw the inference that
the defendant is liable for the alleged misconduct. Morris V. President Donald J.
Trump, No. 21-CV-4445 (LTS), 2021 WL 2227797, at *1 (S.D.N.Y. June 1, 2021).
II.

Complaint
Once again, plaintiff has filed an action on a form utilized for claims under 42

U.S.C. § 1983, which provides for a cause of action alleging that plaintiff’s federal
constitutional rights have been violated by a person acting under color of state law.
(Complaint (“Compl.”)) (Dkt. No. 1). This is not the first time that plaintiff, a Buffalo
resident, has sued the New York State Department of Labor (“DOL”) in Albany. See
Hines v. New York State Dep’t of Labor Staff, No. 1:20-CV-517.
In this complaint, plaintiff alleges that the defendant “refuse[d]” to issue “granted
benefits in accordance with the American Rescue Plan Act of 2021 (HR 1319 . . . )
Sign[ed] into law by President Joe Biden on March 11, 2021.” (Complaint (“Compl.”)
¶ 4, Facts). Plaintiff repeats these limited facts and legal conclusion in his “First Cause
of Action.” (Compl. ¶ 5). Plaintiff seeks one million dollars in damages. (Compl. ¶ 6).
Plaintiff has attached exhibits to his complaint. The first page of his exhibits
appears to be a copy of H.R. 1319 - The American Rescue Plan Act of 2021 (“ARPA”),
printed from “Congress.gov.” (Compl. at CM/ECF p. 6).1 The second page of the
exhibits appears to be the copy of a “notice,” printed from the DOL website, informing

1

Plaintiff has not numbered the pages of his exhibits. Thus, the court will cite to the pages
assigned by the court’s electronic filing system (“CM/ECF”) but will not repeat the electronic filing
designation.
3

the plaintiff that on April 22, 2021, he “successfully completed the Pandemic
Unemployment Assistance (PUA) Application.” (Compl. at 7). The notice also tells the
plaintiff how to access his benefits “if” he is approved. (Id.)
The next document is another notice to plaintiff, printed from the DOL website
which is entitled: “Unemployment Insurance Monetary Benefit Determination.”
(Compl. at 8-9). This document contains a “Weekly Benefit Rate” amount, but also
states that “[t]his is NOT a decision on your eligibility for Unemployment Insurance
Benefits.” (Id.) It appears to be a notice telling plaintiff how his weekly rate would be
calculated based upon the information that the DOL had on file for plaintiff. (Id.) The
next page includes “instructions” which the plaintiff “must follow” before any benefits
can be issued. (Compl. at 10). The next page appears to be a copy of plaintiff’s
Key2Benefits Card information, indicating that plaintiff had .08 dollars in his account
as of May 12, 2021. (Compl. at 11).
The next document contains a list of the DOL forms which plaintiff “completed”
and the date upon which they were submitted online. (Compl. at 12-13). This form
shows that plaintiff submitted his PUA Application on April 22, 2012, but also
submitted an application for Mixed Earner Unemployment Compensation on April 24,
2021 and filed several requests for a “Hearing” in April of 2021, prior to his PUA
application. (Id.) The last two pages of plaintiff’s exhibits appear to be some sort of
resumé,2 listing the Erie County Department of Social Services under the headings

2

Page 14 is a duplicate of page 15.
4

“Experience” and “Education,” with dates and “Job Skills.”3
III.

Venue
A.

Legal Standards

Under 28 U.S.C. § 1391(b), a civil action may be brought in “(1) a judicial
district in which any defendant resides, if all defendants are residents of the State in
which the district is located; (2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated; or (3) if there is no district in which an action
may otherwise be brought as provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction with respect to such action.” 28
U.S.C. § 1391(b).
When a case is filed in a district in which venue is improper, the court shall
dismiss the case or, “if it be in the interest of justice, transfer such case to any district . .
. in which it could have been brought.” 28 U.S.C. § 1406(a). Even if venue is proper, a
district court may sua sponte transfer an action in the interest of justice and for the
convenience of the parties and witnesses to any other district where it might have been
brought. 28 U.S.C. § 1404(a); Ferens v. John Deere Co., 494 U.S. 516, 530 (1990);
Lead Indus. Ass’n, Inc. v. Occupational Safety & Health Admin., 610 F.2d 70, 79 n.17
(2d Cir. 1979) (citing cases); Kelly v. Kelly, 911 F. Supp. 70, 71 (N.D.N.Y. 1996).
“The purpose of section 1404(a) is to prevent the waste of time, energy and money and
3

This document appears to state that from February 2011 until May 2021, plaintiff received a
“Certificate (Job Skills)” from the Erie County Department of Social Services. This information is
listed under the heading “Education.” Under the heading “Experience,” the Erie County Department of
Social Services is listed, but under that, plaintiff has written “Appellant.”
5

to protect litigants, witnesses and the public against unnecessary inconvenience and
expense.” Flaherty v. All Hampton Limousine, Inc., No. 01-CV-9939, 2002 WL
1891212, at *1 (S.D.N.Y. Aug. 16, 2002) (internal quotations marks omitted).
When considering whether to transfer an action sua sponte, courts follow the
same traditional analysis used when a party moves for a change of venue. See, e.g.,
Flaherty, 2002 WL 1891212, at *1-2; Haskel v. FPR Registry, Inc., 862 F. Supp. 909,
916 (E.D.N.Y. 1994). Specifically, “[m]otions to transfer venue are governed by a
two-part test: (1) whether the action to be transferred might have been brought in the
transferee venue; and (2) whether the balance of convenience and justice favors
transfer.” Flaherty, 2002 WL 1891212, at *1.
B.

Analysis

1.

Transfer

I have considered transferring this action because I am well-aware that plaintiff
resides in the Western District of New York and has likely filed this case in the
Northern District of New York because he is attempting to avoid a bar order in the
Western District. However, because plaintiff has again named the DOL in Albany, and
because plaintiff apparently applied for benefits online, rather than transferring this
action, I will conduct the initial review, assuming that venue is appropriate in the
Northern District of New York as I did in plaintiff’s previous case against the DOL (20CV-517).
2.

Merits

In this case, as in 20-CV-517, plaintiff has named the DOL “Staff” as a

6

defendant.4 Plaintiff has listed the defendant’s address as a location in Albany, New
York. (Compl. ¶ 3(a)). From what this court can interpret of plaintiff’s vague statement
of claim,5 plaintiff is alleging that the DOL has somehow refused to pay him benefits
that have been “granted” based on the American Rescue Plan Act of 2021.6 It is
unclear whether plaintiff has submitted the exhibits attached to the complaint in an
effort to show that the DOL granted benefits, but then refused to pay or whether DOL
failed to grant benefits that plaintiff believes he is entitled to based on the ARPA.
Plaintiff states that the “refusal” took place on May 20, 2021. However, unlike his
previous action in which he was simply asking for his benefits to be paid, plaintiff has
instead requested one million dollars in damages from the DOL “staff.”
1.

Eleventh Amendment
a.

Legal Standards

“‘The Eleventh Amendment to the Constitution bars suits against a state in
federal court unless that state has consented to the litigation or Congress has
permissibly enacted legislation specifically overriding the state’s immunity.’” Naples v.
4

Plaintiff does not specify any particular individual or individuals as the “staff.” Plaintiff
applied for his benefits online and may not know who processed his application. Thus, this court will
refer to the defendant “staff” in the singular.
5

The court must interpret pro se complaints to raise the strongest arguments they suggest. See
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (pro se papers are interpreted liberally to raise the
strongest arguments suggested therein).
6

The summary of the statute attached to plaintiff’s complaint shows that the law provides for
many types of relief, only part of which is the extension of unemployment benefits which were
provided by the Coronavirus Aid, Relief and Economic Security (“CARES”) Act, 15 U.S.C. § 9021(c).
https://www.congress.gov/bill/117th-congress/ house-bill/1319/text#toc-HC01DC9A26CE9432AA
9C1A1E56CBF5517 (for full text of the ARPA). The ARPA amends the CARES Act section by
extending the Pandemic Unemployment Assistance from March 24, 2021 until September 6, 2021. 15
U.S.C. § 9021(c).
7

Stefanelli, 972 F. Supp. 2d 373, 390-91 (E.D.N.Y. 2013) (quoting Russell v. Dunston,
896 F.2d 664, 667 (2d Cir. 1990) (citations omitted); Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001)). A claim against a state agency is considered a
claim against the state and implicates the Eleventh Amendment because the state is the
“real” party in interest. Id. at 391 (citing P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993)). The Eleventh Amendment also bars suits
against state agencies and state officers in their official capacities. See Huang v.
Johnson, 251 F.3d 65, 70 (2d Cir. 2001).
b.

Analysis

To the extent that the complaint may be read as suing for damages against New
York State or the DOL as an agency of the state, any such claim would be barred by the
Eleventh Amendment, notwithstanding plaintiff’s reference to “staff.” Plaintiff has not
named any individual defendant, and thus, his claims would appear to be made against
the agency itself. Plaintiff’s claim for one million dollars in damages must be
dismissed with prejudice.
2.

Unemployment Benefits

Even if plaintiff had named an individual in this case who was subject to suit
under section 1983, it is completely unclear from the complaint how plaintiff believes
that any defendant violated either the federal law or the constitution. Plaintiff has not
shown or properly stated that his benefits were granted, and the DOL “refused” to pay.
Nor has plaintiff stated how the defendant’s actions violated the ARPA. In fact, the
documents attached to the complaint only indicate that plaintiff successfully “applied”

8

for the PUA benefits, not that he was granted or denied any benefits. Plaintiff has
simply attached a copy of the statute which provides for a wide variety of relief and
claims that the defendant “violated” this statute, purportedly with respect to plaintiff’s
unemployment benefits.7 Plaintiff’s complaint is so vague and confusing that it violates
Rule 8 and fails to state any kind of a claim against any defendant.8
Unfortunately, it appears that every time that plaintiff believes that an agency,
state or federal, has decided a claim improperly, or has failed to decide quickly enough,
plaintiff files an action in federal court. This behavior has caused him to be barred
from filing cases without permission in the Western District of New York and in the

7

The ARPA is a long statute, containing eleven “Titles” and multiple subsections of each Title,
covering a variety of funds and programs. The section of the ARPA which plaintiff relies upon does
not provide a private cause of action for damages due to “violations” of the act. In fact, the section of
the CARES Act regarding unemployment benefits which the ARPA amends provides that an individual
may “appeal any determination or redetermination regarding the rights to pandemic unemployment
assistance under this section made by the State.” 15 U.S.C. § 9021(c)(5)(A). However, the appeals are
to be conducted by the applicable State under the same procedures as the State uses for “rights to
regular compensation under state law.” 15 U.S.C. § 9021(c)(5)(b). There is no provision for a private
cause of action for damages against the State for a violation of the statute. Whether an implied cause
of action exist depends upon whether there is “a clear manifestation of congressional intent to create”
one. Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011). Such a “clear manifestation” exists
where the statute’s text and structure show an intention to create a federal right through rights-creating
language, an intention to create a private remedy, and consistency of a private remedy with the
statutory scheme. See Rep. of Iraq v. ABB AG, 768 F.3d 145, 170 (2d Cir. 2014). As stated above, a
review of the section upon which plaintiff relies shows no intention of creating a federal damages
remedy, but specifically provides for appeals pursuant to State law, determined by the State under its
own procedures. The ARPA amends that portion of the CARES Act which provides a deadline for
benefits, extending that period of time. Thus, neither statute provides plaintiff with a cause of action
for damages.
8

The New York State Department of Labor website contains information regarding the
unemployment insurance ramifications of the ARPA. https://dol.ny.gov/unemployment/unemploymentinsurance-assistance. This cite contains a link to further details regarding who is eligible and what
those individuals are required, or not required, to do in order to obtain continuation of their
unemployment insurance funds. Plaintiff has not indicated how the defendant has acted or refused to
act in violation of this statute.
9

Second Circuit.9 Plaintiff is now continuing his abuse of the court system in the
Northern District of New York.10 This court has not sanctioned plaintiff yet, but
plaintiff is warned that if he continues this trend, the court will consider referring
his case for potential bar in the Northern District of New York. Thus, the court
recommends dismissal of this action with prejudice.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s motion to proceed IFP (Dkt. No. 2) be GRANTED
FOR PURPOSES OF FILING ONLY, and it is
RECOMMENDED, that the complaint be DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file
written objections to the foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d

9

See In re Hines, No. 17-2090, 2017 WL 6803304 (2d Cir. July 28, 2017) (stating that on “May
5, 2016 this Court entered an order in In Re: Dashon Hines 15–4094 requiring appellant to file a
motion seeking leave of this Court prior to filing any future appeals.”) On October 22, 2020, the
Second Circuit consolidated the plaintiff’s appeals in five cases from the Northern District of New
York, (20-CV-505, 506, 517, 536, and 638) and held that “Petitioner now moves for leave to file these
five appeals. Upon due consideration, it is hereby ORDERED that the motions are DENIED because
the appeals do not depart from Petitioner’s “prior pattern of vexatious filings.” In re Martin-Trigona, 9
F.3d 226, 229 (2d Cir. 1993). Hines v. TopShelf Mgmt., No. 20-1609, 20-1627, 20-1656, 20-1885, 202728 (2d Cir. Oct. 22, 2020) (consolidated appeals).
10

In a separate Order and Report-Recommendation, I am recommending dismissal of two other
actions that plaintiff filed within four days of this action against the Office of Temporary Disability and
Assistance Staff: 1:21-CV-601 (plaintiff filed 21-CV-601on the same day as the instant action), 1:21CV-626 (filed 5/28/2021). Both of these actions make claims under the ARPA, are clearly filed in the
Northern District of New York to avoid his bar order in the Western District, and are too vague to state
any claim against a New York State Agency defendant which is also immune from damage claims
because of the Eleventh Amendment.
10

Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d
Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
Dated: June 7, 2021

11