Klein v. Koenig et al

Filing 8

ORDER: The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. The Clerk of Court is further instructed to hold this matter open on the docket until a civil judgment is entered. Plaintiff's c omplaint is dismissed for failure to state a claim for relief. The Court grants Plaintiff 30 days' leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court& #039;s Pro Se Intake Unit within thirty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 20-CV-9319 (PMH). An Amended Complaint form is attached to this order. If Plaintiff fails to submit an amended complaint within the time allowed and does not show good cause to excuse such failure, the Court will enter a civil judgment consistent with this order and direct the Clerk of Court to terminate this matter. SO ORDERED. (Signed by Judge Philip M. Halpern on 3/31/2021) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BENJAMIN KLEIN,
Plaintiff,
-against-

20-CV-9319 (PMH)

SHLOMO KOENIG, SECRET POLICE CHIEF
(aka MODESTY SQUAD), et al.,

ORDER

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Benjamin Klein (“Plaintiff”) commenced this pro se action on November 6,
2020 alleging that Defendants violated his constitutional rights. On February 2, 2021, the Court
issued an Order of Dismissal, which dismissed Plaintiff’s Complaint without prejudice. (Doc. 7).
The Court granted Plaintiff leave to file an Amended Comaplint within 30 days and noted
that “[i]f Plaintiff fails to submit an amended complaint within the time allowed and does not show
good cause to excuse such failure, the Court will enter a civil judgment consistent with this order
and direct the Clerk of Court to terminate this matter.” (Id. at 6). The Court directed the Clerk of
Court to “mail a copy of [the Order of Dismissal] to Plaintiff and note service on the docket.” (Id. at
5).
The docket does not reflect that Plaintiff was mailed a copy of the February 2, 2021 Order of
Dismissal and the Court cannot otherwise ascertain whether the pro se Plaintiff received a copy of
same.
Accordingly, the Court sua sponte extends Plaintiff’s time to file an Amended Complaint that
is consistent with the standards set forth in the February 2, 2021 Order of Dismissal by 30 days. If
Plaintiff does not file an Amended Complaint by May 3, 2021, the Court will direct the Clerk of Court

1

to terminate this action. A copy of the Order of Dismissal as well as an Amended Complaint form are
annexed hereto.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the
docket.

SO ORDERED.
Dated:

March 31, 2021
White Plains, New York
PHILIP M. HALPERN
United States District Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BENJAMIN KLEIN,
Plaintiff,
-against-

20-CV-9319 (PMH)

SHLOMO KOENIG, SECRET POLICE CHIEF
(aka MODESTY SQUAD), et al.,

ORDER OF DISMISSAL

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Benjamin Klein brings this pro se action, for which the filing fees have been paid,
alleging that Defendants violated his constitutional rights. For the reasons stated below, the Court
dismisses the complaint with leave to replead within thirty days of the date of this order.
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the
filing fees, if it determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants Corp.,
221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir.
1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous
appeal)), or that the Court lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999). Moreover, the court “has the power to dismiss a complaint sua sponte for
failure to state a claim,” Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir. 1980), so long
as the plaintiff is given notice and “an opportunity to be heard.” Thomas v. Scully, 943 F.2d 259,
260 (2d Cir.1991) (per curiam); see also Perez v. Ortiz, 849 F.2d 793, 797 (2d Cir. 1988); Wright
& Miller, Federal Practice and Procedure § 1357, at 301 & n. 3. The Court is obliged, however,
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

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F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original).
Although pro se litigants enjoy the Court’s “special solicitude,” Ruotolo v. I.R.S., 28 F.3d
6, 8 (2d Cir. 1994) (per curiam), their pleadings 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. A complaint states a claim for relief if the claim is plausible. Ashcroft
v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in the pleader’s favor. Id. (citing Twombly,
550 U.S. at 555). But the Court need not accept “[t]hreadbare recitals of the elements of a cause
of action,” which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555).
As set forth in Iqbal:
[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.
Id. (internal citations, quotation marks, and alteration omitted). 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.
DISCUSSION
Plaintiff’s 19-page complaint fails to comply with Rule 8. The Court has closely scrutinized
Plaintiff’s complaint, and despite the information that Plaintiff presents, the Court is unable to
understand what claims Plaintiff is trying to assert. The Court therefore dismisses the complaint
for failure to state a claim. Even if Plaintiff’s complaint does state any valid claims, the complaint
suffers from other deficiencies.
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Case 7-20-cv-09319-PMH

A.

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RICO Claim
Plaintiff’s assertion that he brings claims under the civil provision of the Racketeering

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961(c) fails to state a claim
because he does not allege that Defendants acted as an enterprise or engaged in any racketeering
activity. It also appears that Plaintiff’s claims may be untimely. Additionally, many of the
Defendants that Plaintiff names are private parties, and Plaintiff cannot bring federal claims against
private parties To state a civil RICO claim, Plaintiff must plead that he was injured by “(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering activity.” See Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 496 (1985). The complaint does not suggest that any such activity took place.
Accordingly, the Court dismisses Plaintiff’s RICO claims for failure to state a claim.
Plaintiff also cannot initiate the arrest and prosecution of any individual or entity 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 Plaintiff direct prosecuting attorneys to initiate a
criminal proceeding against Defendants, 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).
B.

Claims Under 42 U.S.C. § 1983 and Private Parties
Because Plaintiff asserts claims that Defendants violated his constitutional rights, his

claims are construed as claims under 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 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).
Plaintiff’s claims against the private parties must also be dismissed. A claim for relief under
§ 1983 must allege facts showing that each defendant acted under the color of a state “statute,
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ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties are therefore not
generally liable under the statute. Sykes v. Bank of America, 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 Ciambriello 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 Defendants Yitzchok Dov
(Isaac, George) Fisch, Rabbi Gabriel Stern, Zalman Dov Klein, Malky Fisch, Dina Klein, Aryeh
Gutman, Schlomo Gutman, Aaron Eagle, Jacob (Yossi) Eagle, Esther Klein, and Avraham Lehrer
are private parties who do not work for any state or other government body, Plaintiff has not stated
a claim against these defendants under § 1983.
C.

Leave to Replead
Second Circuit precedent is clear that “[a] pro se complaint should not [be] dismiss[ed]

without [the Court’s] granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d
Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks
omitted)). Because the nature and viability of Plaintiff’s claims are not clear, the Court grants
Plaintiff leave to replead within 30 days of the date of this order.
In the event that Plaintiff chooses to file an amended complaint, the Court strongly
encourages him to ask for assistance from someone who can help him organize his thoughts and
claims. If Plaintiff needs legal advice related to this matter, he may contact the New York Legal
Assistance Group’s Legal Clinic for Pro Se Litigants in the Southern District of New York, which
is a free legal clinic staffed by attorneys and paralegals to assist those who are representing
themselves in civil lawsuits in this Court. A copy of the flyer with details of the clinic is attached to

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this order. The amended complaint, if Plaintiff chooses to file one, should be sent to this Court’s Pro
Se Intake Unit.
In the statement of claim, Plaintiff must provide a short and plain statement of the relevant
facts supporting each claim against each defendant named in the amended complaint. Plaintiff is
also directed to provide the addresses for any named defendants. To the greatest extent possible,
Plaintiff’s amended complaint must:
give the names and titles of all relevant persons;
describe all relevant events, stating the facts that support Plaintiff’s case including what
each defendant did or failed to do;
give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
give the location where each relevant event occurred;
describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe
the injuries Plaintiff suffered; and
state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief.
Because Plaintiff’s amended complaint will completely replace, not supplement, the original
complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended
complaint. The amended complaint cannot be excessively long or complicated; and must be a
short, plain, and concise statement of the elements of each claim for relief.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.
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The Clerk of Court is further instructed to hold this matter open on the docket until a civil
judgment is entered.
Plaintiff’s complaint is dismissed for failure to state a claim for relief. The Court grants
Plaintiff 30 days’ leave to file an amended complaint that complies with the standards set forth
above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within thirty
days of the date of this order, caption the document as an “Amended Complaint,” and label the
document with docket number 20-CV-9319 (PMH). An Amended Complaint form is attached to
this order. If Plaintiff fails to submit an amended complaint within the time allowed and does not
show good cause to excuse such failure, the Court will enter a civil judgment consistent with this
order and direct the Clerk of Court to terminate this matter.
SO ORDERED.
Dated:

February , 2021
New York, New York
PHILIP M. HALPERN
HILIP
HALPE
United States Distr Judge
District
nited

6

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________

Write the full name of each plaintiff.

(Include case number if one has been
assigned)

-against-

COMPLAINT
Do you want a jury trial?
Yes
No

Write the full name of each defendant. If you need more
space, please write “see attached” in the space above and
attach an additional sheet of paper with the full list of
names. The names listed above must be identical to those
contained in Section II.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 1/9/17

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
Federal Question
Diversity of Citizenship

A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

Page 2

If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Zip Code

Email Address (if available)

Page 3

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Page 4

Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

Page 5

INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

Page 6

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
Yes

No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

Page 7

United States District Court
Southern District of New York

Pro Se (Nonprisoner) Consent to Receive Documents Electronically
Parties who are not represented by an attorney and are not currently incarcerated may
choose to receive documents in their cases electronically (by e-mail) instead of by regular
mail. Receiving documents by regular mail is still an option, but if you would rather receive
them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER 1 at
www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.
If you consent to receive documents electronically, you will receive a Notice of Electronic
Filing by e-mail each time a document is filed in your case. After receiving the notice, you
are permitted one “free look” at the document by clicking on the hyperlinked document
number in the e-mail. 2 Once you click the hyperlink and access the document, you may not
be able to access the document for free again. After 15 days, the hyperlink will no longer
provide free access. Any time that the hyperlink is accessed after the first “free look” or the
15 days, you will be asked for a PACER login and may be charged to view the document. For
this reason, you should print or save the document during the “free look” to avoid future
charges.

IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court’s
Electronic Case Filing Rules & Instructions, documents may be served by electronic means.
If you register for electronic service:
1. You will no longer receive documents in the mail;
2. If you do not view and download your documents during your “free look” and
within 15 days of when the court sends the e-mail notice, you will be charged for
looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case. 3
Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service that
allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the PACER
Case Locator over the internet.
1

You must review the Court’s actual order, decree, or judgment and not rely on the description in the email notice alone.
See ECF Rule 4.3

2

The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of
electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk’s
Office at the Court.

3

500 PEARL STREET | NEW YORK, NY 10007
300 QUARROPAS STREET | WHITE PLAINS, NY 10601
PRO SE INTAKE UNIT: 212-805-0175

rev. 2/9/15

CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I
affirm that:
1. I have regular access to my e-mail account and to the internet and will check regularly for
Notices of Electronic Filing;
2. I have established a PACER account;
3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil
Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper
copies of case filings, including motions, decisions, orders, and other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name,
address, or e-mail address, or if I wish to cancel this consent to electronic service;
5. I understand that I must regularly review the docket sheet of my case so that I do not miss a
filing; and
6. I understand that this consent applies only to the cases listed below and that if I file
additional cases in which I would like to receive electronic service of notices of documents, I
must file consent forms for those cases.
Civil case(s) filed in the Southern District of New York:
Note: This consent will apply to all cases that you have filed in this court, so please list all of
your pending and terminated cases. For each case, include the case name and docket number
(for example, John Doe v. New City, 10-CV-01234).

Name (Last, First, MI)

Address

City

State

Telephone Number

E-mail Address

Date

Signature

Return completed form to:
Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007

Zip Code