Fan v. The 18th Police Precinct et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO REPLEAD: The Court dismisses the complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), for the reasons stated above, see 28 U.S.C. § 1915(e)(2)(B)(ii), (iii), with 30 days leave to replead her claims under 42 U.S.C. §§ 1983, 1985. The Court declines to exercise supplemental jurisdiction of Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from thi s order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Court directs the Clerk of Court to hold this matter open on the docket until a civil judgment is entered. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/6/2025) (ar)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LINGLING FAN,
Plaintiff,
-against-

24-CV-8910 (LTS)

THE 18TH POLICE PRECINCT; NEW YORK
STATE ATTORNEY GENERAL’S OFFICE
(MANHATTAN CRIMINAL COURT
DIVISION); SAKS OFF 5TH,

ORDER OF DISMISSAL
WITH LEAVE TO REPLEAD

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action alleging that Defendants violated her
rights under federal and state law. She sues the 18th Precinct of the New York City Police
Department (“NYPD”); the New York State Attorney General’s Office; and Saks Off 5th
(“Saks”). By order dated December 9, 2024, the Court granted Plaintiff’s request to proceed in
forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the
Court dismisses the complaint, but grants Plaintiff 30 days’ leave to replead her claims in an
amended complaint.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is
frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see
Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also
dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See
Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
to state a claim, pro se 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.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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. In reviewing the complaint, the Court must
accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of
action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating
legal conclusions from well-pleaded factual allegations, the Court must determine whether those
facts make it plausible – not merely possible – that the pleader is entitled to relief. Id.
BACKGROUND
The following allegations are taken from the complaint. On August 11, 2024, Plaintiff
visited the Saks store on 57th Street in Manhattan “to return items gifted [to her] without tags.”
(ECF 1, at 2.) Plaintiff alleges that, despite her “intent to verify the returned items with identical
store merchandise, a store employee falsely accused [her] of theft.” (Id.) Plaintiff asserts that the
accusation was “rooted in racial and gender discrimination, showcasing a prejudiced attitude

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from store employees.” 1 (Id.) Store employees “used derogatory language and engaged in
provocative behavior to humiliate and intimidate” Plaintiff. (Id. at 3.) She maintains that the
employees’ actions “amount[] to hate crimes” against her. (Id. at 4.)
The situation “escalated”, and the police became involved, resulting in Plaintiff’s
detention by officers from the 18th Precinct. (Id. at 3.) Plaintiff alleges that officers “illegally
seized” her wallet as well as “family heirloom jewelry” and “jade artifacts” worth more than
$20,000,000. (Id. at 2.) She maintains that the seized items were “never documented or
returned.” (Id.) Plaintiff “experienced police brutality” during the detention, which included
“physical force and denial of access to restroom facilities” as well as being “slammed against a
wall and forcibly handcuffed.” (Id. at 3.)
The New York State Attorney General’s Office “engaged in deceptive practices,
instructing Plaintiff to submit motions via email, but failed to forward these documents to the
court, causing delays.” (Id. at 2.) Plaintiff maintains that the Attorney General’s Office
“appeared to act in concert” with the 18th Precinct by “knowingly relying on false police reports
and fabricated evidence, further obstructing the Plaintiff’s ability to receive a fair trial.” (Id. at
3.)
Plaintiff alleges that the “cumulative actions of Saks employees, police officers, and the
Attorney General’s Office represent a coordinated effort to harm [her] professional reputation,
financial stability, and emotional well-being.” (Id. at 4.)
Plaintiff further alleges that Saks engaged in “deceptive sales practices” when it “sold
low-quality items sourced from platforms like Temu, re-labeled them as ‘Unknown Brand,’ and
marked up the prices by over 100 times.” (Id. at 8.)

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Plaintiff identifies as a Chinese female.
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Plaintiff attempts to assert federal constitutional claims under 42 U.S.C. § 1983; claims
under Title VI and Title VII of the Civil Rights Act of 1964; claims for violation of the Hate
Crimes Prevention Act, 18 U.S.C. § 249; conspiracy claims under 42 U.S.C. § 1985(3); claims
under the Federal Trade Commission Act (“FTCA”), 15 U.S.C. § 45; and various claims under
state law.
Plaintiff seeks money damages.
DISCUSSION
A.

Claims under 42 U.S.C. § 1983
Plaintiff asserts a variety of constitutional claims under Section 1983. To state a claim

under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or
laws of the United States was violated, and (2) the right was violated by a person acting under
the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
State action
A claim for relief under Section must allege facts showing that each defendant acted
under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983.
Private parties are therefore not generally liable under the statute. Sykes v. Bank of Am., 723 F.3d
399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 295 (2001)); see also Cariello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002)
(“[T]he United States Constitution regulates only the Government, not private parties.”). As
Defendant Saks is a private party that is not alleged to work for any state or other government
body, Plaintiff has not stated a claim against this defendant under Section 1983. The Court
therefore dismisses Plaintiff’s Section 1983 claims against Saks for failure to state a claim on
which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

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Eleventh Amendment immunity
“[A]s a general rule, state governments may not be sued in federal court unless they have
waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’
Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).
“The immunity recognized by the Eleventh Amendment extends beyond the states themselves to
state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has
not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not
abrogate the states’ immunity in enacting Section 1983. See Trotman v. Palisades Interstate Park
Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s Section 1983 claims against the New York
State Attorney General’s Office, which is effectively an arm of the state, are therefore barred by
the Eleventh Amendment and are dismissed. See 28 U.S.C. § 1915(e)(2)(B)(iii).
The 18th Precinct
Plaintiff’s claims against the 18th Precinct of the NYPD must be dismissed because an
agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396
(“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be
brought in the name of the city of New York and not in that of any agency, except where
otherwise provided by law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007);
see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff
is generally prohibited from suing a municipal agency.”).
Even if the Court were construe Plaintiff’s claims against the 18th Precinct as being
asserted against the City of New York, her claims would still fail because Plaintiff does not
allege sufficient facts to suggest a viable municipal liability claim. When a plaintiff sues a
municipality under Section 1983, it is not enough for the plaintiff to allege that one of the
municipality’s employees or agents engaged in some wrongdoing. The plaintiff must show that
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the municipality itself caused the violation of the plaintiff’s rights. See Connick v. Thompson,
563 U.S. 51, 60 (2011) (“A municipality or other local government may be liable under . . .
section [1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or
‘causes’ a person ‘to be subjected’ to such deprivation.” (quoting Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 692 (1978))); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other
words, to state a Section 1983 claim against a municipality, the plaintiff must allege facts
showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy,
custom, or practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town
of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,
403 (1997) (internal citations omitted).
A plaintiff may satisfy the policy or custom requirement by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that
caused the particular deprivation in question; (3) a practice so consistent and
widespread that, although not expressly authorized, constitutes a custom or usage
of which a supervising policy-maker must have been aware; or (4) a failure by
policymakers to provide adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the rights of the those who
come into contact with the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted).
While the complaint includes a reference to a “similar incident” in 2013, Plaintiff does
not elaborate on that incident or allege any other facts suggesting that the City of New York has
a policy, practice, or custom that has caused a violation of her constitutional rights. The Court
therefore dismisses Plaintiff’s municipal liability claims under Section 1983 for failure to state a
claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

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Because Plaintiff may be able to allege additional facts to state a municipal liability claim
or a claim against an individually named officer or officers, the Court grants her 30 days’ leave
to replead her Section 1983 claims in an amended complaint.
B.

Claims under 42 U.S.C. § 1985(3)
Plaintiff asserts claims under 42 U.S.C. § 1985(3) that Defendants conspired to violate

her rights. To state a claim of conspiracy under Section 1985(3), a plaintiff must show that there
exists: (1) a conspiracy; (2) for the purpose of depriving the plaintiff of the equal protection of
the laws, or of equal privileges or immunities under the laws; (3) an overt act in furtherance of
the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of her right
or privilege as a citizen of the United States. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).
“[T]he [§ 1985(3)] conspiracy must also be motivated by some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators’ action.” Id. (internal quotation
marks and citation omitted). “[C]omplaints containing only conclusory, vague, or general
allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of [her]
constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.” Ciambriello v. Cnty. of Nassau, 292 F.3d
307, 324-25 (2d Cir. 2002). Claims under Section 1985(3) must be alleged “with at least some
degree of particularity” and must include facts showing that the “overt acts which defendants
engaged in . . . were reasonably related to the promotion of the claimed conspiracy.” Hernandez
v. Goord, 312 F. Supp. 2d 537, 546 (S.D.N.Y. 2004).
Here, Plaintiff’s allegations about a conspiracy among store employees, law enforcement,
and the Attorney General’s Office to arrest and prosecute her because of her race and national
origin are conclusory, vague, and without supporting detail. The Court therefore dismisses

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Plaintiff’s claims of conspiracy under Section 1985(3) for failure to state a claim on which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
C.

Claims under Title VII
Title VII of the Civil Rights Act of 1964 provides that
[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex or national
origin.

42 U.S.C. § 2000e-2(a).
Here, Plaintiff fails to state a claim under Title VII because she does not allege that she
was ever employed by any of the defendants or that she was discriminated against by any of the
defendants in connection with employment. The Court therefore dismisses Plaintiff’s Title VII
claims for failure to state a claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
D.

Claims under Title VI
Plaintiff asserts claims under Title VI of the Civil Rights Act against Saks. Title VI

prohibits a recipient of federal funds from intentionally discriminating on the basis of race, color,
or national origin. Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664 (2d Cir. 2012) (citing
42 U.S.C. § 2000d). Here, Plaintiff alleges no facts suggesting that Saks receives federal funds or
that it intentionally discriminated against her on the basis of her race, color, or national origin.
The Court therefore dismisses Plaintiff’s Title VI claims for failure to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
E.

Claims under criminal law
Plaintiff seeks to bring claims under the Hate Crimes Prevention Act, 18 U.S.C. § 249.

Plaintiff cannot assert a claim under the Hate Crimes Prevention Act, however, because it does
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not provide a private right of action for a civil suit, but rather is a criminal statute that can only
be enforced by the federal government. See Everage v. Cent. Broad. Sys. Corp., Inc., No. 7:18102, 2019 WL 1063367, at *2 (E.D. Ky. Mar. 6, 2019) (collecting decisions holding that the
Hate Crimes Prevention Act, 18 U.S.C. § 249, “does not authorize a private right of action).
Plaintiff cannot initiate the arrest and prosecution of an individual in this court because “the
decision to prosecute is solely within the discretion of the prosecutor.” Leeke v. Timmerman, 454
U.S. 83, 87 (1981). Nor can she direct prosecuting attorneys or the Court to initiate a criminal
proceeding against Defendant, because prosecutors possess discretionary authority to bring
criminal actions, and they are “immune from control or interference by citizen or court.” Conn.
Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
The Court therefore dismisses Plaintiff’s claims under the Hate Crimes Prevention Act
and other federal criminal statutes for failure to state a claim on which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(ii).
F.

Federal Trade Commission Act
Plaintiff also attempts to assert claims of false advertising and deceptive practices against

Saks under the FTCA, 15 U.S.C. § 45. Plaintiff cannot bring claims under the FTCA, however,
because that statute provides no private right of action. See Naylor v. Case and McFrath, Inc.,
585 F.2d 557, 561 (2d Cir. 1978) (stating that “it is clear that no private right of action arises
under [15 U.S.C. § 45]”); Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir.
1974) (“[T]he provisions of the Federal Trade Commission Act may be enforced only by the
Federal Trade Commission. Nowhere does the Act bestow upon either competitors or consumers
standing to enforce its provisions.”); Rotblut v. Ben Hur Moving & Storage, Inc., 585 F. Supp. 2d
557, 560 (S.D.N.Y. 2008) (“[T]he [FTCA], which prohibits unfair or deceptive practices, does
not provide for a private cause of action.”). The Court therefore dismisses Plaintiff’s FTCA
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claims for failure to state a claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
G.

Claims under state law
Plaintiff also brings various claims under New York state law. A district court may

decline to exercise supplemental jurisdiction of state law claims when it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the
federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims
remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988). Having dismissed the federal claims of which the Court
has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of Plaintiff’s
state law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by
enumerating the circumstances in which district courts can refuse its exercise.’” (quoting City of
Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997))).
LEAVE TO AMEND GRANTED
Plaintiff proceeds in this matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has
cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.
USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege

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additional facts to address the deficiencies outlined in this order, the Court grants Plaintiff 30
days’ leave to amend her complaint to address these deficiencies.
If Plaintiff does not file an amended complaint within the time allowed, the Court will
direct the Clerk of Court to enter judgment in this action.
CONCLUSION
The Court dismisses the complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1),
for the reasons stated above, see 28 U.S.C. § 1915(e)(2)(B)(ii), (iii), with 30 days’ leave to
replead her claims under 42 U.S.C. §§ 1983, 1985.
The Court declines to exercise supplemental jurisdiction of Plaintiff’s state law claims.
See 28 U.S.C. § 1367(c)(3).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court directs the Clerk of Court to hold this matter open on the docket until a civil
judgment is entered.
SO ORDERED.
Dated:

March 6, 2025
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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