Dawkins v. Mucatel et al
Filing
69
MEMORANDUM AND OPINION re: 54 MOTION to Dismiss . filed by George Cancro, Alphonso Grimes, Ralph Causwell, Donald Antonecchia, Leake and Watts Services, Inc., Allan Mucatel, Biondi Education Center, Jill St. John. The Court d ismisses Plaintiff's Fifth Amended Complaint without prejudice. Within 30 days from the date of this Opinion, Plaintiff may have one final opportunity to amend his complaint, addressing the deficiencies identified herein. The Clerk of the Court is respectfully requested to terminate the pending Motion. (Dkt. No. 54.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 2/10/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DONALD DAWKINS,
Plaintiff,
v.
No. 13-CV-2366 (KMK)
BIONDI EDUCATION CENTER, LEAKE &
WATTS SERVICES, ALLAN MUCATEL,
ALPHONSO GRIMES, DONALD
ANTONECCHIA, GEORGE CANCRO,
JILL ST. JOHN, and RALPH CAUSWELL,
OPINION AND ORDER
Defendants.
Appearances:
Donald Dawkins
Middletown, NY
Pro Se Plaintiff
Isaac J. Burker, Esq.
Susan M. Corcoran, Esq.
Tarek M. Maheran, Esq.
Jackson Lewis P.C.
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Donald Dawkins (“Plaintiff”) filed the instant Fifth Amended Complaint
pursuant to 42 U.S.C. §1983 against Biondi Education Center (“Biondi” or “the school”), Leake
& Watts Services (“Leake & Watts”), and their employees, Allan Mucatel (“Mucatel”),
Alphonso Grimes (“Grimes”), Donald Antonecchia (“Antonecchia”), George Cancro (“Cancro”),
Jill St. John (“St. John”), and Ralph Causwell (“Causwell”) (collectively, “Defendants”),
alleging violations of his rights under the First, Fifth, and Fourteenth Amendments of the
Constitution. (See generally Pl.’s Fifth Amended Compl. (“Compl.”) (Dkt. No. 49).) Plaintiff
further alleges unlawful discrimination by Defendants, in violation of Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d (“Title VI”). (See generally Pl.’s Opp’n to Defs.’ Mot. to
Dismiss (“Pl.’s Opp’n”) (Dkt. No. 60).) Before the Court is Defendants’ Motion To Dismiss
Plaintiff’s Fifth Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt.
No. 54.) For the reasons explained herein, Defendants’ Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Fifth Amended Complaint and the
documents attached to his opposition papers, which the Court takes as true for the purpose of
resolving the instant Motion.1
Plaintiff is a former employee of Leake & Watts, having held a non-teaching position at
Biondi between 2001 and 2012. (See Compl. at unnumbered 3, 12; Pl.’s Opp’n Ex. D (“Aff. of
James Faulkner, Jr.”) at unnumbered 1.) “[C]ontrolled and owned by Leake [&] Watts,” Biondi
is “a public high school with private status” that provides educational services to students with
special needs. (Compl. at unnumbered 10, 15.) “[T]hese types of private schools” are “heavily
regulated and closely supervised by the State,” (id. at unnumbered 3, 7), which “almost entirely”
funds the school’s budget, (id. at unnumbered 5). For these reasons, Plaintiff contends that
1
Though courts are “typically confined to the allegations contained within the four
corners of the complaint,” it is appropriate to “consider factual allegations contained in a pro se
litigant’s opposition papers and other court filings” in “analyzing the sufficiency of a pro se
pleading.” Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8,
2013) (citations and internal quotation marks omitted). Therefore, in deciding the instant
Motion, the Court may properly consider the affidavits attached to Plaintiff’s opposition papers.
See Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (“On
a motion to dismiss, the Court can consider documents that a pro se litigant attaches to his
opposition papers.” (italics omitted)).
2
Leake & Watts, Biondi, and the named employees are “an arm of the State” that should be
“deemed State actors” for purposes of his § 1983 and Title VI claims. (Pl.’s Sur-Reply to Defs.’
Mot. to Dismiss (“Pl.’s Sur-Reply”) at unnumbered 1 (Dkt. No. 67).)
The events giving rise to these claims trace back to December 2011, when Plaintiff
launched “a union organizing campaign” for workers employed by Leake & Watts. (Pl.’s Opp’n
Ex. A (“Aff. of Julie Berman”) ¶ 3.) He took “a leading role” in these efforts, “trying to
overcome the chilling effects of [Leake & Watts’] union-busting campaign.” (Id. ¶¶ 11, 13.) As
a result, Plaintiff “started having problems with the administration” and “was really being
single[d] out.” (Pl.’s Opp’n Ex. E (“Aff. of Perry Kelly”) at unnumbered 1.) He was forced to
relocate his office, (see id.; Compl. at unnumbered 11), and “was consistently reassigned job
duties,” (Pl.’s Opp’n Ex. I (“Aff. of Windell Whitett”) at unnumbered 1).
In May 2012, Plaintiff was involved in an “alleged assault incident” with a student and
then “suspended immediately” by the school. (Compl. at unnumbered 12; see also Pl.’s Opp’n
Ex. J (“Aff. of Kenneth M. Stevens”) at unnumbered 1.) Shortly thereafter on May 14, 2012,
Leake & Watts, “without conducting a full investigation,” and in violation of “their own policies
and regulations,” (Compl. at unnumbered 8, 14), “informed him that he was being terminated,”
(Aff. of Julie Berman ¶ 14).
Plaintiff thus contends that Defendants violated his constitutional rights, (see Compl. at
unnumbered 1), and unlawfully discriminated against him, in violation of Title VI, (see Pl.’s
Opp’n at unnumbered 4–6). Specifically, the Fifth Amended Complaint alleges that Mucatel,
Chief Executive Officer of Leake & Watts, “ordered his subordinates to undermine any and
every effort made by [P]laintiff . . . to organize a union at [Biondi],” while Biondi
Superintendent Antonecchia “conspired with all other [D]efendants to stop [P]laintiff from
3
forming a union.” (Compl. at unnumbered 10.) St. John, an administrative assistant at Biondi,
allegedly “issu[ed] confidential information regarding [P]laintiff’s background . . . for retaliatory
purposes” in response to “[P]laintiff’s union forming activities.” (Id. at unnumbered 11.) The
Fifth Amended Complaint further alleges that Support Supervisor Causwell, Assistant Principle
Grimes, and Principal Cancro “fail[ed] to give [P]laintiff his Due Process [r]ights” prior to his
termination resulting from “the alleged assault incident.” (Id. at unnumbered 12–13.)
B. Procedural Background
On April 8, 2013, Plaintiff commenced this Action against Mucatel, Antonecchia, St.
John, Causwell, Grimes and Cancro, (Dkt. No. 2), filing an Amended Complaint four days later,
(Dkt. No. 4). On September 12, 2013, Plaintiff filed a Second Amended Complaint, adding
Leake & Watts and Biondi as Defendants. (Dkt. No. 9.) On November 15, 2013, he filed a
Third Amended Complaint against all Defendants named in his Second Amended Complaint.
(Dkt. No. 11.) Plaintiff then filed a Fourth Amended Complaint on October 7, 2014. (Dkt. No.
45.)
Ultimately, Plaintiff filed this Fifth Amended Complaint on January 8, 2015, alleging that
Defendants “depriv[ed] Plaintiff of those rights secured under the Constitution and laws of the
United States” by “taking adverse employment actions against him in retaliation for his protected
speech.” (Compl. at unnumbered 1.) Defendants filed their Motion To Dismiss and supporting
papers on March 9, 2015. (Dkt. Nos. 54–57.) Plaintiff filed opposition papers on April 15,
2015, now additionally alleging that Defendants “adopted discriminatory and retaliatory tactics”
in response to his “attempt[s] to exercise his constitutional rights to form a union,” allegedly in
violation of Title VI. (Pl.’s Opp’n at unnumbered 5.) Defendants filed a reply on April 29,
2015, (Dkt. No. 62), and Plaintiff filed a sur-reply on June 22, 2015, (Dkt. No. 67).
4
II. Discussion
A. Standard of Review
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his [or her] entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations,
citations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alterations and internal quotation marks
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level . . . .” Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the allegations
in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to
relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[]
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that
the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.
R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
5
hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.”).
In addition, “when ruling on a defendant’s motion to dismiss, a judge must accept as true
all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also Dixon v. United States, No. 13-CV-2193, 2014 WL 23427, at *1 (S.D.N.Y. Jan.
2, 2014) (report and recommendation) (“For the purpose of this motion to dismiss, we assume
that the facts alleged in [the plaintiff’s] complaint are true.”). Further, “[f]or the purpose of
resolving [a] motion to dismiss, the [c]ourt . . . draw[s] all reasonable inferences in favor of the
plaintiff.” Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing
Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). “In adjudicating a Rule
12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Disc.
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also
Hendrix v. City of N.Y., No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013)
(same).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his or her]
[complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks
omitted); see also Farzan v. Wells Fargo Bank, N.A., No. 12-CV-1217, 2013 WL 6231615, at
*12 (S.D.N.Y. Dec. 2, 2013) (same), aff’d sub nom. Farzan v. Genesis 10, 619 F. App’x 15 (2d
Cir. 2015). In deciding a motion to dismiss a pro se complaint, it is appropriate to consider
“materials outside the complaint to the extent that they are consistent with the allegations in the
6
complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug.
2, 2013) (internal quotation marks omitted), including “documents that a pro se litigant attaches
to his opposition papers,” Agu, 2010 WL 5186839, at *4 n.6; see also Walker v. Schult, 717 F.3d
119, 122 n.1 (2d Cir. 2013) (noting that a court may consider “factual allegations made by a pro
se party in his papers opposing the motion”). However, “the liberal treatment afforded to pro se
litigants does not exempt a pro se party from compliance with relevant rules of procedural and
substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation
marks omitted); see also Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se
litigants generally are required to inform themselves regarding procedural rules and to comply
with them.” (italics and internal quotation marks removed)).
B. Plaintiff’s § 1983 Claims
The Fifth Amended Complaint puts forth only a single cause of action, which is brought
pursuant to 42 U.S.C. § 1983. (See Compl. at unnumbered 1.) Under that federal provision:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage . . . subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress.
42 U.S.C. § 1983. The Supreme Court has explained that “[t]he purpose of § 1983 is to deter
state actors from using the badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504
U.S. 158, 161 (1992). In applying § 1983 to private conduct (regardless of its severity), the
Supreme Court has sought to “‘preserve[] an area of individual freedom by limiting the reach of
federal law’ and avoid[] the imposition of responsibility on a State for conduct it could not
control.” Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Lugar
7
v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “A plaintiff pressing a claim of violation of
his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro.
Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). To constitute state action, there must be an
alleged deprivation of a federal right “caused by the exercise of some right or privilege created
by the State or by a rule of conduct imposed by the State or by a person for whom the State is
responsible,” and “the party charged with the deprivation must be a person who may fairly be
said to be a state actor.” Lugar, 457 U.S. at 937; see also Hollander v. Copacabana Nightclub,
624 F.3d 30, 33 (2d Cir. 2010) (referring to and applying the “two prong” test outlined in Lugar).
“Conduct that is formally ‘private’ may become so entwined with governmental policies
or so impregnated with a governmental character that it can be regarded as governmental action.”
Rendell-Baker v. Kohn, 457 U.S. 830, 847 (1982) (some internal quotation marks omitted); see
also Hollander, 624 F.3d at 34 (recognizing “actions of nominally private entities are attributable
to the state” under certain circumstances). A private entity, however, does not become a state
actor for purposes of § 1983 merely on the basis of “the private entity’s creation, funding,
licensing, or regulation by the government.” Cranley v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105,
112 (2d Cir. 2003). “Rather, there must be such a close nexus between the state and the
challenged action that the state is responsible for the specific conduct of which the plaintiff
complains.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (brackets and internal
quotation marks omitted)). Similarly, “[a]ction taken by private entities with the mere approval
or acquiescence of the State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 52 (1999). To establish that a private actor’s conduct is to be deemed state action, a § 1983
plaintiff must demonstrate that the State was involved in the specific activity giving rise to his or
her cause of action; it is not enough to show merely that the State was involved in “some
8
activity” of the private entity “alleged to have inflicted injury upon [the] plaintiff.” Sybalski v.
Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257–58 (2d Cir. 2008) (citation,
emphasis, and internal quotation marks omitted).
Although there is “no single test to identify state actions and state actors,” Cooper v. U.S.
Postal Serv., 577 F.3d 479, 491 (2d Cir. 2009) (internal quotation marks omitted), three main
tests have emerged:
For the purposes of [§] 1983, the actions of a nominally private entity are
attributable to the state . . . (1) [when] the entity acts pursuant to the coercive
power of the state or is controlled by the state (“the compulsion test”); (2) when
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 (“the joint action test” or “close nexus test”); or (3) when the
entity has been delegated a public function by the state (“the public function
test”).
Sybalski, 546 F.3d at 257 (alterations and some internal quotation marks omitted); see also
Hollander, 624 F.3d at 34 (same).
Here, despite his contention that “[D]efendants[’] conduct in terminating [him] is fairly
attributable to the State,” (Compl. at unnumbered 3), Plaintiff cannot establish that Defendants’
termination decision is attributable to the State under any of these three tests.
1. The Compulsion Test
According to the Fifth Amended Complaint, Leake & Watts is “heavily regulated and
closely supervised by the State” such that its “freedom of decision making is substantially
circumscribed by [New York State (“NYS”)] Department of Education’s guidelines and the
various contracts with state agencies.” (Compl. at unnumbered 7–8; cf. Defs.’ Mem. Of Law in
Supp. of Mot. to Dismiss (“Defs.’ Mem.”) 3 (Dkt. No. 57) (“As a state[-]funded agency
receiving a substantial amount of funding, Leake [&] Watts, including Biondi, are subject to
varying requirements from the State.” ).) Plaintiff specifically contends that these regulations
9
“require that the school maintain written job descriptions and a written policy on criteria and
procedures for hiring and dismissal” of its employees. (Compl. at unnumbered 6.)
“Even extensive regulation by the government does not transform the actions of the
regulated entity into those of the government.” S.F. Arts & Athletics, Inc. v. U.S. Olympic
Comm., 483 U.S. 522, 544 (1987); see also Gilinsky v. Columbia Univ., 488 F. Supp. 1309, 1312
(S.D.N.Y. 1980) (“[M]erely being subject to the laws of the State or the United States is clearly
insufficient to show that action in violation of those laws is state action.”), aff’d, 652 F.2d 53 (2d
Cir. 1981). Instead, the state’s regulation must actually “evidence governmental coercion or
encouragement” over the particular activity that allegedly caused the constitutional injury.
Hamlin ex rel. Hamlin v. City of Peekskill Bd. of Educ., 377 F. Supp. 2d 379, 388 (S.D.N.Y.
2005) (internal quotation marks omitted) (citing Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Sybalski, 546 F.3d at 257–58 (“[T]he plaintiff
must allege that the state was involved with the activity that caused the injury giving rise to the
action.” (internal quotation marks and citation omitted) (emphasis in original)); Powe v. Miles,
407 F.2d 73, 81 (2d Cir. 1968) (“[T]he state must be involved not simply with some activity of
the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the
injury. Putting the point another way, the state action, not the private action, must be the subject
of complaint.” (emphasis added)). A private entity, in other words, is not “a state actor where its
conduct is not compelled by the state but is merely permitted by state law.” Cranley, 318 F.3d at
112; see also Hamlin, 377 F. Supp. 2d at 388–89 (reaffirming there must be “a sufficiently close
nexus between the State and the challenged action of the regulated entity so that the action of the
latter may fairly be treated as that of the State itself” (citation and internal quotation marks
omitted)).
10
The Fifth Amended Complaint offers no specific allegation that Defendants are regulated
by the State in the school’s personnel matters, including employment termination. See Iqbal,
556 U.S. at 678 (reaffirming that facts merely consistent with a defendant’s liability “stop[ ]
short of the line between possibility and plausibility of entitlement to relief” (internal quotation
marks omitted)). Plaintiff broadly alleges that the “private” school’s “hiring decision making
process is regulated, mandated, and religiously enforced by the State of New York.” (Pl.’s
Opp’n at unnumbered 3.) The Fifth Amended Complaint, however, provides no details
surrounding this alleged compulsion. Indeed, Plaintiff himself acknowledges that “[D]efendants
have . . . their own policies and regulations.” (Compl. at unnumbered 14.) Regardless, in
contrast to the generally extensive regulation of schools like Biondi, the NYS Department of
Education’s guidelines show relatively little interest in the personnel matters of the schools they
regulate. (See generally Defs.’ Mem. Ex. B (“Guidelines”) § 126.6.). 2 Even among the
provisions relating to personnel, these regulations focus exclusively on the requirements “for
teachers and directors,” making no mention of other school staff. (Id. § 126.6(a)). Moreover, the
only references to “dismissal or termination” throughout the entirety of the Guidelines pertain to
students, again making no mention of school staff. (Id. § 126.7(d)(5); see also id. §§ 126.4(e)(2),
126.9(a)(6)–(7), 126.17(a)(6)). Plaintiff thus offers nothing in support of his § 1983 claims that
links the state regulation of personnel matters and his termination, much less provides plausible
2
The Court may properly consider the Guidelines as “incorporated in the complaint by
reference” for purposes of resolving the instant Motion, see Chambers v. Time Warner, Inc., 282
F.3d 147, 152 (2d Cir. 2002) (“[T]he complaint is deemed to include any . . . documents
incorporated in it by reference.” (internal quotation marks omitted)); Leonard F., 199 F.3d at
107, but these regulations are also a matter of which judicial notice may be taken, see United
States v. Knauer, 635 F. Supp. 2d 203, 206 n.2 (E.D.N.Y. 2009) (noting “courts may take
judicial notice of the rules and regulations of an administrative agency”); cf. Anglisano v. N.Y.C.
Dep’t of Educ., No. 14-CV-3677, 2015 WL 5821786, at *7 (E.D.N.Y. Sept. 30, 2015) (noting the
court’s ability to take judicial notice of Department of Education regulations).
11
claims that the State “fostered or encouraged” Defendants’ decision to terminate his employment
based on his union-organizing activities. Hamlin, 377 F. Supp. 2d at 389 (citing Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)); see also Rendell-Baker, 457 U.S. at 841 (finding
termination of petitioners’ employment by private school did not constitute state action where
“the decisions to discharge the petitioners were not compelled or even influenced by any state
regulation,” and noting that “in contrast to the extensive regulation of the school generally, the
various regulators showed relatively little interest in the school’s personnel matters”); Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996) (finding medical provider for persons in
custody was a state actor with respect to medical services but not its employment decisions).
More to the point, Plaintiff himself offers nothing to suggest that Defendants’ termination
decision was compelled or even influenced by any state regulation. Cf. Brentwood, 531 U.S. at
296 (discussing another case where the defendant “could fairly be said to act under the
compulsion of the state” because it “was created pursuant to a federal law to achieve
governmental objectives, and the government retains authority to appoint the majority of [the
entity’s] directors”). 3 Certainly, Plaintiff offers no claim that the state’s regulations encouraged,
let alone tolerated, termination of employees because of union-organizing activities. Yet, it is
Plaintiff’s allegedly wrongful termination based on such activities that is the precise “activity of
the institution” at issue in the instant Action. See Powe, 407 F.2d at 81. Put another way, the
gravamen of Plaintiff’s claims deals not with Defendants’ performance of educational services
3
Though not a point of disagreement between the Parties, it is worth noting that the
individual Defendants were, at all relevant times, employed by Leake & Watts, not by the State.
(See, e.g., Defs.’ Mem. 4; Compl. at unnumbered 10–13.) This distinction further reinforces that
Plaintiff cannot establish state involvement to meet the compulsion test. See Lowe v. Astor
Servs. for Children & Families, No. 11-CV-389, 2011 WL 5142664, at *4 (S.D.N.Y. Sept. 29,
2011) (finding the plaintiff could not sustain a cause of action under § 1983 in part because no
federal, state, or local official played any role in the employment decision at issue), aff’d sub
nom. Faddis-DeCerbo v. Astor Servs. for Children & Families, 500 F. App’x 46 (2d Cir. 2012).
12
but instead with their “activity” in terminating Plaintiff’s employment. See Sherlock, 84 F.3d at
527 (“The fact that a municipality is responsible for providing medical attention to persons held
in its custody may make an independent contractor rendering such services a state actor within
the meaning of § 1983 with respect to the services so provided, but that fact does not make the
contractor a state actor with respect to its employment decisions.” (citations omitted)); DD v.
Lincoln Hall, No. 09-CV-860, 2010 WL 695027, at *12 (S.D.N.Y. Feb. 19, 2010)
(“[E]mployment decisions, even by employers who may be state actors in other contexts, do not
constitute state action absent a showing that there was a nexus between the challenged actions
and the state.”). There is simply no intersection between state regulations and the actionable
conduct by the private actors, let alone compulsion of the latter by the former. See Colabella v.
Am. Inst. of Certified Pub. Accountants, No. 10-CV-2291, 2011 WL 4532132, at *11 (E.D.N.Y.
Sept. 28, 2011) (concluding the complaint failed to satisfy the compulsion test where the
“[p]laintiffs do not allege that [the defendants] act[ed] under the coercion or influence of the
state, or that the state influenced or compelled defendants to suspend [the plaintiff]”).
2. The Joint Action Test
Plaintiff fairs no better under the joint action test, notwithstanding Plaintiff’s dramatic
declaration that “[t]he school’s very survival depends on the State.” (Compl. at unnumbered 7.)
In seeking to establish state action on the basis of “a symbiotic relationship between the State
and [Defendants],” the Fifth Amended Complaint emphasizes that Defendants “receive virtually
all of [their] funds from state sources.” (Id.) Defendants themselves readily recognize the
school is “a state[-]funded agency receiving a substantial amount of funding,” (Defs.’ Mem. 3),
for the law is well-settled that the receipt of extensive governmental funding is insufficient to
subject a private entity to liability under § 1983, see Rendell-Baker, 457 U.S. at 832–33, 843
13
(rejecting “state action” argument for employment terminations effected by a private school that
(1) received 90-99% of its funding from the State; (2) was subject to state regulation; and (3)
contracted with the State to perform certain services for students); Liburd v. Bronx Lebanon
Hosp. Ctr., No. 07-CV-11316, 2008 WL 3861352, at *8 (S.D.N.Y. Aug. 19, 2008) (“[A]
predominance of public funding is not conclusive evidence of state action.”); Lynn ex rel. Julie
B. v. St. Anne Inst., No. 03-CV-1333, 2006 WL 516796, at *15 (N.D.N.Y. Mar. 2, 2006) (“The
facts that [the defendant school] receives funding from the State of New York or that a
significant portion (if not all) of [its] clientele comes through state actors . . . does not transform
it into a state actor.” (citing Rendell-Baker, 457 U.S. at 841)). Rather, to satisfy the joint action
test, Plaintiff must show that this financial support specifically affected the decision to terminate
his employment. See Horvath v. Westport Library Ass’n, 362 F.3d 147, 152 (2d Cir. 2004)
(explaining that “[t]he decisive factor in the [Rendell-Baker] Court’s view was that the school’s
personnel decisions were uninfluenced by public officials”); cf. Moglia v. Sullivan Cty. Head
Start, 988 F. Supp. 366, 367 (S.D.N.Y. 1997) (finding that defendant’s personnel decisions were
not state action, despite extensive federal funding and regulation), aff’d 159 F.3d 1347 (2d Cir.
1998). In the instant Action, Plaintiff merely alleges that Defendants are “funded almost entirely
by governmental agencies” and that the State “bear[s] all the expenses associated with the
placement” of students at the school. (Compl. at unnumbered 5.) These allegations do not
suffice under the joint action test. As established by Supreme Court and Second Circuit
precedent, the fact that Leake & Watts and Biondi receive substantial financial support from the
State does not render them, or their employees, state actors. See, e.g., Rendell-Baker, 457 U.S. at
841 (“[T]he relationship between the school and its [employees] is not changed because the State
pays the tuition of the students.”); Fabrikant, 691 F.3d at 207 (“[A] private entity does not
14
become a state actor for purposes of § 1983 merely on the basis of the private entity’s creation,
funding, licensing, or regulation by the government.” (internal quotation marks omitted)); Scaggs
v. N.Y. Dep’t of Educ., No. 06-CV-799, 2007 WL 1456221, at *13 (E.D.N.Y. May 16, 2007)
(deeming school to be a state actor where “the claims relate to the alleged total inadequacy of a
school to provide free public education to its students while receiving state funding,” not to “an
employment action with regard to a single teacher, in which it may fairly be said that the state
could be only minimally or tangentially involved”).
In a further attempt to establish state involvement, Plaintiff contends that “[t]he State and
this privately owned enterprise are participants in a joint venture, the educating of New York
State students with learning disabilities.” (Compl. at unnumbered 7.) However, the mere fact
that Defendants and the State both “provide educational services,” (Defs.’ Mem. 2), cannot “be
said to make the State in any realistic sense a partner or even a joint venturer in [Defendants’]
enterprise,” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176–77 (1972). The Fifth Amended
Complaint offers no allegation that Defendants were “willingly engaged in joint action with the
government.” Hamlin, 377 F. Supp. 2d at 386 (internal quotation marks omitted). In fact, it
appears that the relationship between the state and Defendants was purely contractual. (See, e.g.,
Compl. at unnumbered 6 (“Under the contract, [Defendants] must carry out the educational plan
devised by the NYS [Department] of Education for each student placed with the school.”);
Guidelines §126.10 (i)(l) (“The commissioner shall consult with the governmental agency or
authority which operates, licenses, regulates, approves[,] or contracts with such a school.”).)
Despite Plaintiff’s allegation that “if the State had decided to provide the service itself, its
conduct would be measured against constitutional standards,” (Compl. at unnumbered 8), acts of
private contractors who provide services with government financing “do not become acts of the
15
government by reason of their significant or even total engagement in performing public
contracts.” Rendell-Baker, 457 U.S. at 841.
3. The Public Function Test
Lastly, Plaintiff’s claims also fail under the public function test because Defendants do
not perform a function that is “traditionally the exclusive prerogative of the state.” RendellBaker, 457 U.S. at 842 (emphasis omitted). Defendants educate “maladjusted high school
students” at public expense, and there is no doubt that this function serves the public, (Pl.’s
Opp’n at unnumbered 3), but the mere fact that a private entity performs a function that serves
the public does not render its acts under color of state law for purposes of a § 1983 cause of
action, see Rendell-Baker, 457 U.S. at 842 (“There can be no doubt that the education of
maladjusted high school students is a public function, but that is only the beginning of the
inquiry . . . . That a private entity performs a function which serves the public does not make its
acts state action.”). Under this third test, private entities can be deemed state actors only if they
perform a public function that is within the State’s “exclusive prerogative.” Id.; see also Phelan
ex rel. Phelan v. Torres, 843 F. Supp. 2d 259, 273 (E.D.N.Y. 2011) (“The fact that the state may
contract with a private party to perform a function does not [necessarily] transform the private
party into a state actor . . . .”), aff’d 512 F. App’x 88 (2d Cir. 2013). Notwithstanding the
importance of public education, courts have consistently held that “education is not considered to
be exclusively the prerogative of the State.” Hamlin, 377 F. Supp. 2d at 386; see also Powe, 407
F.2d at 80 (“Education has never been a state monopoly in this country . . . .”); accord Logiodice
v. Tr. of Me. Centr. Inst., 296 F.3d 22, 26–27 (1st Cir. 2002) (“Obviously, education is not and
never has been a function reserved to the state . . . . [S]chooling . . . is regularly and widely
performed by private entities . . . .”); Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 162, 165–66
16
(3d Cir. 2001) (holding that a private school specializing in treatment and education of juvenile
sex offenders was not providing a function that is traditionally the exclusive province of the
State).
Because Plaintiff has failed to plausibly plead that Defendants were acting under color of
state law in terminating his employment, his § 1983 claim cannot survive. Accordingly, the
Court grants Defendants’ Motion as to this cause of action.
C. Plaintiff’s Title VI Claims
In his opposition papers, Plaintiff alleges for the first time that “[D]efendants engaged in
intentional discrimination” in violation of Title VI. (Pl.’s Opp’n at unnumbered 6.) 4
Under Title VI, “[n]o person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.
§ 2000d. To state a claim for a violation of Title VI, “a plaintiff must show, through specific
factual allegations, that (1) the defendant discriminated on a prohibited basis; (2) the
discrimination was intentional; and (3) the discrimination was a substantial or motivating factor
for the defendant’s action.” HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012
WL 4477552, at *14 (S.D.N.Y. Sept. 27, 2012) (citations and internal quotation marks omitted).
However, Plaintiff offers absolutely no allegations concerning discrimination on a
prohibited basis recognized as actionable under Title VI. Neither the Fifth Amended Complaint
nor Plaintiff’s opposition papers make any mention of Plaintiff’s race, color, or national origin.
See McCrudden v. E-Trade Fin. Corp., No. 13-CV-8837, 2014 WL 3952903, at *3–4 (S.D.N.Y.
4
Though no claim under Title VI was included in the Fifth Amended Complaint, (see
Compl. 15–17; see also Defs.’ Reply Mem. Of Law in Supp. of Mot. to Dismiss (“Defs.’ Reply”)
1 (Dkt. No. 62)), the Court considers the allegations of Plaintiff’s opposition papers, given his
status as a pro se litigant, see Walker, 717 F.3d at 122 n.1.
17
Aug. 12, 2014) (dismissing claim under Title VI where plaintiff “does not allege his race, color,
or national origin” and “does not allege which of these was the basis of the [d]efendants’
‘discrimination’”). Construed liberally, Plaintiff’s Opposition instead grounds his claim for
intentional discrimination on the “discriminatory and retaliatory tactics” allegedly used by
Defendants in response to Plaintiff’s “attempt[] to exercise his constitutional right to form a
union.” (Pl.’s Opp’n at unnumbered 5.) Union activity, however, is not a class protected under
Title VI. See 42 U.S.C. § 2000d (prohibiting discrimination “on the ground of race, color, or
national origin”); accord Joy v. Daniels, 479 F.2d 1236, 1241 (4th Cir. 1973) (describing the
purpose of Title VI as protecting a “person’s right to be free of invidious discrimination in
federally assisted programs”).5
Plaintiff, moreover, does not suggest any reason to believe he was discriminated against
on the basis of race, color, or national origin. As such, his Title VI claim is dismissed. See
Melgarejo v. N.Y. Coll. of Podiatric Med., No. 12-CV-6669, 2014 WL 1683809, at *6–7
(S.D.N.Y. Apr. 28, 2014) (rejecting Title VI claims as a matter of law where the plaintiff “failed
to put forth either direct evidence of discrimination or indirect evidence sufficient to make out a
prima facie case of discrimination”), aff’d, 601 F. App’x 61 (2d Cir. 2015); Faccio v. Eggleston,
No. 10-CV-699, 2011 WL 3666588, at *10 (N.D.N.Y. Aug. 22, 2011) (dismissing Title VI claim
where the plaintiffs failed to identify “any incidents where employees or students at the middle
school discriminated against any student . . . due to race, ethnicity, or gender”).
5
While the Court certainly does not condone the suppression of labor organizing efforts,
the law clearly limits causes of action under Title VI to discrimination based only on “race,
color, or national origin.” 42 U.S.C. § 2000d. Union activity “is a protected activity” under
certain federal and state laws, (see Compl. at unnumbered 4), but it is not a recognized basis for
claims under this particular statute. Plaintiff may want to consider whether his claims are viable
under those federal and state laws.
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III. Conclusion
In light of the foregoing analysis, the Court dismisses Plaintiff's Fifth Amended
Complaint without prejudice. Within 30 days from the date ofthis Opinion, Plaintiff may have
one final opportunity to amend his complaint, addressing the deficiencies identified herein. The
Clerk of the Court is respectfully requested to terminate the pending Motion. (Dkt. No. 54.)
SO ORDERED.
DATED:
February I(), 2016
White Plains, New York
KE
E
UN TED STATES DISTRICT JUDGE
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