Wilson v. Phoenix House (Director) et al
Filing
26
OPINION AND ORDER: The defendants' February 9, 2011 motion to dismiss is granted in part. The plaintiff's claim under § 43(a} of the Lanham Act, and her claim for compensatory damages pursuant to § 1983 are denied. The remainder o f Wilson's claims -- her claim for injunctive relief pursuant to § 1983 and her NYHRL claim survive. The plaintiff shall be given three weeks to indicate whether she wishes to voluntarily dismiss this case. A scheduling order will govern subsequent pre-trial proceedings in the event the plaintiff does not advise the Court that she wishes to dismiss this action. (Signed by Judge Denise L. Cote on 8/1/2011) (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SABIRE WILSON,
:
Plaintiff,
:
:
-v:
:
PHOENIX HOUSE and SYDNEY HARGROVE,
:
Defendants.
:
:
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10 Civ. 7364 (DLC)
OPINION & ORDER
APPEARANCES:
For plaintiff:
Sabire Wilson, pro se
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
For defendants:
Anna Avarsin Higgins
Smith Mazure Director Wilkins Young & Yagerman, P.C.
111 John Street
New York, NY 10038
DENISE COTE, District Judge:
Pro se plaintiff Sabire Wilson (“Wilson”) brings this
action pursuant to 42 U.S.C. § 1983 against Phoenix House, an
in-patient substance abuse treatment center to which Wilson was
confined pursuant to New York’s Drug Treatment Alternative to
Prison (“DTAP”) program, and Sidney Hargrove (“Hargrove”), a
Phoenix House unit director.
Wilson alleges that the defendants
violated the Equal Protection Clause of the Fourteenth Amendment
and the New York Human Rights Law, N.Y. Exec. Law § 296
(McKinney 2010) (“NYHRL”), when they denied Wilson, a male-tofemale transgender, admission to a female support group and
subsequently discharged her from the DTAP program at Phoenix
House.
Wilson also brings a false advertising claim against the
defendants.
Defendants have moved to dismiss plaintiff’s claims
on a number of grounds, including, inter alia: (1) that
plaintiff failed to exhaust her administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a); and, (2) that she has failed to state a claim upon
which relief can be granted pursuant to Rule 12(b)(6), Fed. R.
Civ. P.
For the following reasons, the defendants’ motion to
dismiss is granted in part.
BACKGROUND
The following facts are taken from the plaintiff’s January
6, 2011 amended complaint, and assumed to be true for the
purposes of this motion.
for drug possession.
On March 27, 2008, Wilson was arrested
Pursuant to a plea agreement, Wilson
entered the Manhattan DTAP program and selected Phoenix House,
an in-patient substance abuse treatment center, for her
confinement.
At her entrance interview on December 23, Wilson
told the staff that she was a male-to-female transgender with
male genitalia.
During her time at Phoenix House, Wilson was
2
required to sleep in male facilities and use male bathrooms, but
was permitted to dress as a female.
In early January 2009, a senior counselor permitted Wilson
to participate in a new gender-specific recovery group.
When
the group started, some female members complained about Wilson’s
participation and Wilson was asked to leave.
Wilson appealed
the decision to Hargrove, who said Wilson should never have been
given permission to participate in the female group.
Subsequently, Wilson spoke with the other female members of the
group and claims that they consented to her participation.
Hargrove, however, refused to permit Wilson to attend the female
group.
Sometime thereafter, Hargrove convened a case conference
regarding Wilson and recommended that she be transferred due to
her transgender “needs.”
He also contacted the District
Attorney who told him that if another facility was not found for
Wilson before her next court date, she would be discharged back
to the court at that time.
After Wilson learned of her
impending transfer, she complained to Hargrove in writing and in
person.
When Wilson requested to speak to Hargrove’s superior,
Hargrove responded that his supervisor supported his decision
and that the decision was final.
Since an alternative placement
was not found, Wilson was discharged to the court.
3
On September 24, 2010, Wilson filed this action against
Phoenix House and Hargrove.
filed a motion to dismiss.
amended complaint.
On December 13, the defendants
On January 6, 2011, Wilson filed an
On February 9, the defendants filed a second
motion to dismiss Wilson’s amended complaint.
Wilson opposed
the motion on April 8, and the motion became fully submitted on
April 25.
In a letter dated April 26, Wilson requested that the
case be dismissed without prejudice since she had limited access
to the prison law library and therefore, could not fully oppose
the defendants’ motion.1
DISCUSSION
On a motion to dismiss the court must “accept all
allegations in the complaint as true and draw all inferences in
the non-moving party’s favor.”
LaFaro v. New York
Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009)
(citation omitted).
To survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation
1
Pursuant to Rule 41(1)(A)(i), Fed. R. Civ. P., a “plaintiff may
dismiss an action without a court order by filing . . . a notice
of dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Id. Since Wilson filed her
notice of voluntary dismissal after the defendants’ February 9
motion to dismiss became fully submitted, she will be given
three weeks from the date of this Opinion to indicate whether
she still wishes to voluntarily dismiss this case.
4
omitted).
The court is “not bound to accept as true legal
conclusions couched as factual allegations.”
Id. at 1950-51.
Pleadings filed by pro se plaintiffs are to be construed
liberally.
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
(citation omitted).
The rule favoring liberal construction of
pro se submissions is especially applicable to civil rights
claims.
Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004)
(citation omitted).
I.
Equal Protection Claim
Wilson brings a § 1983 claim asserting that the defendants
discriminated against her on the basis of sex or sexual
orientation in violation of the Equal Protection Clause.
The
defendants move to dismiss this claim on several grounds, the
first of which is that Wilson failed to exhaust administrative
remedies, as required by the PLRA.
The PLRA applies to actions “brought with respect to prison
conditions under section 1983 . . . by a prisoner confined in
any jail, prison, or other correctional facility.”
1997e(a) (emphasis supplied).
42 U.S.C. §
The PLRA defines “prisoner” as
“any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or
5
diversionary program.”
42 U.S.C. § 1997e(h).
While confined to
Phoenix House, Wilson was a “prisoner” subject to the PLRA.
See
Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006)
(drug treatment facility).
Before a prisoner may bring a § 1983 claim, the PLRA
requires exhaustion of all administrative remedies that are
“available” to the prisoner.
42 U.S.C. § 1997e(a).
But
“failure to exhaust is an affirmative defense under the PLRA,
and . . . inmates are not required to specially plead or
demonstrate exhaustion in their complaint.”
U.S. 199, 216 (2007).
Jones v. Bock, 549
Defendants contend that Wilson’s § 1983
claim is barred since she failed to exhaust New York City
Department of Corrections (“NYCDOC”) administrative remedies,
specifically those provided by the five-level Inmate Grievance
Resolution Program (“IGRP”).
explained whether:
The defendants, however, have not
(1) the IGRP procedures were available at
Phoenix House; (2) Wilson had notice that NYCDOC grievance
procedures applied to the DTAP program; and, (3) Wilson could
use NYDOC procedures to complain of a wrong at Phoenix House.
In the absence of such a showing by the defendants, dismissal on
this ground must be denied at this time.
Second, defendants argue that Wilson’s § 1983 claim is
barred by the PLRA since Wilson’s mental anguish is not based on
any physical injury.
Section 1997e(e) of the PLRA prohibits
6
prisoners from bringing a “Federal civil action . . . for mental
or emotional injury suffered while in custody without a prior
showing of physical injury.”
42 U.S.C. § 1997e(e).
Section
1997e(e), however, is not “a general preclusion of all relief if
the only injury the prisoner can claim -- other than the
intangible harm presumed to flow from constitutional injuries -is emotional or mental.”
(2d Cir. 2002).
Thompson v. Carter, 284 F.3d 411, 418
A plaintiff may still bring a claim for
injunctive or declaratory relief.
Id.
Thus, while Wilson is
barred from requesting compensatory damages, she may still be
able, as a theoretical matter, to bring a claim for injunctive
relief.
Wilson argues that her incarceration in state prison after
being discharged from Phoenix House constitutes a physical
injury and therefore, she can receive damages.
unavailing.
This argument is
Section 1997e(e) does not define “physical injury,”
but there is no indication that continued confinement alone
fulfills this requirement.
Indeed, if confinement alone were
sufficient, § 1997e(e) would be superfluous since the PLRA only
applies to “prisoners” who are “incarcerated or detained.”
Cf.
Dawes v. Walker, 239 F.3d 489, 495 (2d Cir. 2001) (Walker, C.J.
writing separately) (Congress crafted § 1997e(e) to “distinguish
meritorious prisoner claims of emotional injury from frivolous
7
ones; the physical injury would, in essence, vouch for the
asserted emotional injury.”).
Finally, defendants contend that Wilson’s § 1983 claim must
be dismissed because neither defendant was acting under the
color of state law.
To state a claim under § 1983, a plaintiff
must allege that she was injured by “either a state actor or a
private party acting under color of state law.”
Ciambriello v.
County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).
“If a
defendant’s conduct satisfies the state action requirement under
the Fourteenth Amendment, then that conduct also constitutes
action ‘under color of’ state law for purposes of § 1983.”
Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 229 (2d
Cir. 2004).
The actions of nominally private entities are
attributable to the state when those actions meet one
of three tests: 1. The compulsion test: the entity
acts pursuant to the coercive power of the state or is
controlled by the state, 2. The public function test:
the entity has been delegated a public function by the
state, or, 3. The joint action test or close nexus
test: the state provides significant encouragement to
the entity, the entity is a willful participant in
joint activity with the state, or the entity’s
functions are entwined with state policies.
Hollander v. Copacabana Nightclub, 624 F.3d 30, 34 (2d Cir 2010)
(citation omitted), cert. denied, 131 S. Ct. 914 (2011).
Wilson
has plead a sufficiently close nexus between the state and
Phoenix House such that the defendants’ actions constitute
“state action” for purposes of Wilson’s § 1983 claim.
8
See West
v. Atkins, 487 U.S. 42, 54 (1988) (physician under contract with
state to provide medical services to inmates); Kia P. v.
McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (private hospital was
“part of the reporting and enforcement machinery for . . . a
government agency charged with detection and prevention of child
abuse and neglect”).
II.
False Advertising Claim
Wilson also brings a false advertising claim, alleging that
she chose Phoenix House based on its representation on the
Substance Abuse and Mental Health Services Administrative
(“SAMHSA”) website that it accepted lesbian and gay patients.
The defendants have moved to dismiss this claim on the ground
that plaintiff is not a consumer who was allegedly deceived by
the Phoenix House advertising but a prisoner who was ordered by
the state to attend the Phoenix House program.
The plaintiff’s complaint is construed as a false
advertising claim under § 43(a) of the Lanham Act, 15 U.S.C. §
1125(a)(1)(B).
Section 43(a) of the Lanham Act provides, in
relevant part:
Any person who, on or in connection with any goods or
services . . . uses in commerce . . . any . . . false
or misleading description of fact, or false or
misleading representation of fact, which -. . . .
9
(B) in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities,
or geographic origin of his or her or another person’s
goods, services, or commercial activities, shall be
liable in a civil action by any person who believes
that he or she is or is likely to be damaged by such
act.
15 U.S.C. § 1125(a)(1).
To bring a claim of false advertising under § 43(a), a
plaintiff must demonstrate:
“(1) a reasonable interest to be
protected against the alleged false advertising and (2) a
reasonable basis for believing that the interest is likely to be
damaged by the alleged false advertising.”
Famous Horse Inc. v.
5th Avenue Photo Inc., 624 F.3d 106, 113 (2d Cir. 2010).
“The
‘reasonable interest’ prong of this test includes commercial
interests, direct pecuniary interests, and even a future
potential for a commercial or competitive injury.”
ITC Ltd. v.
Punchgini, Inc., 482 F.3d 135, 169 (2d Cir. 2007).
Although
standing for a claim under the Lanham Act does not require that
the litigants be in competition, “competition [is viewed] as a
strong indication of why the plaintiff has a reasonable basis
for believing that its interest will be damaged by the alleged
false advertising.”
Famous Horse, 624 F.3d at 113.
Wilson has not plead a sufficiently commercial interest in
the alleged false advertising to state a claim.
As the amended
complaint explains, Wilson was ordered to participate in the
Phoenix House drug treatment program as part of her sentence for
10
violation of the criminal law.
As a result, Wilson has not
plead sufficient facts to meet the standing requirement for a
false advertising claim under the Lanham Act.
III. State Law Claim
Wilson alleges that the defendants violated § 296(18)(2) of
the NYHRL when they discriminated against her on the basis of
her transgender status and failed to make reasonable
accommodations for her Gender Identity Disorder.
The defendants
move to dismiss this claim on the ground that § 296(18)(2)
applies to landlords but not to institutions serving as
correctional facilities for DTAP participants.
Section 296(18)(2) states, in relevant part:
18. It shall be an unlawful discriminatory practice
for the owner, lessee, sub-lessee, assignee, or
managing agent of, or other person having the right of
ownership of or possession of or the right to rent or
lease housing accommodations:
(2) To refuse to make reasonable accommodations in
rules, policies, practices, or services, when such
accommodations may be necessary to afford said person
with a disability equal opportunity to use and enjoy a
dwelling, including reasonable modification to common
use portions of the dwelling . . . .
N.Y. Exec. Law § 296(18)(2) (McKinney 2010).
The NYHRL defines
“housing accommodation” as “any building, structure, or portion
thereof which is used or occupied or is intended, arranged or
designed to be used or occupied, as the home, residence or
11
sleeping place of one or more human beings."
292(10)
(McKinney 2010).
N.Y. Exec. Law
§
Defendants have not identified any
support for their argument that Phoenix House is not the "owner,
lessee, sub-lessee, assignee, or managing agent of" a "housing
accommodation" within the meaning of
§§
292 (10) and 296 (18) (2) .
Accordingly, the defendants' motion to dismiss this claim is
denied.
CONCLUSION
The defendants' February 9, 2011 motion to dismiss is
granted in part.
The plaintiff's claim under
§
43(a} of the
Lanham Act, and her claim for compensatory damages pursuant to
§
1983 are denied.
The remainder of Wilson's claims -- her
claim for injunctive relief pursuant to § 1983 and her NYHRL
claim
survive.
The plaintiff shall be given three weeks to
indicate whether she wishes to voluntarily dismiss this case.
A
scheduling order will govern subsequent pre-trial proceedings in
the event the plaintiff does not advise the Court that she
wishes to dismiss this action.
SO ORDERED:
Dated:
New York, New York
August 1, 2011
United
12
Judge
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