Todie v. Buffalo Half-way House Inc. et al
DECISION AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; finding as moot 3 Motion to Compel; finding as moot 4 Motion for Extension of Time to File. For the reasons stated in this Decision and Order, the federal claims i n Plaintiffs Complaint are dismissed with prejudice for failure to state a claim, and any state law claims in the Complaint are dismissed without prejudice. Plaintiff is cautioned that his right to pursue further relief in federal court at public exp ense will be greatly curtailed if he has three actions or appeals dismissed under the provisions of 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. See 28 U.S.C. § 1915(g). The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), th at any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be d irected, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/11/17. Copy of this Decision and Order sent by first class mail to Plaintiff. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EUGENE A. TODIE,
DECISION and ORDER
-vsBUFFALO HALF-WAY HOUSE, INC.,
LESLIE GREATHOUSE, JACQUELINE
DIGGS, MS. GRIGGS, TRACY WOODS, MR.
Proceeding pro se, Eugene A. Todie (“Todie” or “Plaintiff”)
instituted this action against the Buffalo Half-Way House, Inc.
(“Buffalo Halfway House”) and the individual defendants, who are or
§ 1320d-5,” “31 U.S.C. §§ 3729-3733,” and “New York State law.”
(Complaint ¶ 8(C)). According to Plaintiff, these injuries were
sustained after he was transferred from FCI Allenwood (ALM) to
Buffalo Halfway House in May of 2012, where he apparently resided
until completing the sentence of imprisonment entered against him
in this Court.
Legal Standards on Initial Screening
The Complaint is before this Court for initial screening under
28 U.S.C. § 1915A. Section 1915A requires district courts to review
docketing,”•and “to dismiss such complaints if, upon review, the
court determines that the complaint fails to state a claim upon
which relief can be granted or that the claims raised are frivolous
or malicious.” Larkin v. Savage, 318 F.3d 138, 140 & n. 2 (2d Cir.
2003) (citing 28 U.S.C. § 1915A).
litigant]’s pro se complaint broadly,” Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (citation omitted). A court should not
dismiss a complaint if the Plaintiff has stated “enough facts to
state a claim that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Overview of Plaintiff’s Complaint
The First Cause of Action
Plaintiff’s First Cause of Action (see Compl. ¶¶ 10-38) sets
forth allegations of “unsanitary/unhealthy preexisting” conditions
at Buffalo Halfway House such as “[p]arasitic vermin infesting the
kitchen” and inadequate handwashing stations and supplies of soap.
Plaintiff also alleges he was forced to “surrender his medications”
to Buffalo HWH management which deprived him of the “sense of
control” over his medical condition that he had while at Allenwood
FCI (ALM), and was denied crackers or milk with which to take his
medications. Plaintiff also accuses Resident Manager Tracy Woods
(“Woods”), to whom he had to turn over his medications, of being a
drug abuser. Plaintiff asserts that the allegations set forth under
the First Cause of Action show that Associate Director Jacqueline
Diggs (“Diggs”) “and her coworkers” violated “17 C.F.R. Ch. 2
§ 240.15(c)1-2, along with New York State, other Federal Laws and
as previously mentioned, a count of HIPPA [sic] proxy violation[,]”
and the Eighth Amendment. (Compl. ¶38). The only dates alleged as
relevant to the First Cause of Action are June 6, 2012, and June 8,
The Second Cause of Action
Plaintiff’s Second Cause of Action (see Compl. ¶¶ 39-67) sets
forth additional allegations of denying Plaintiff his medications
and food to take the medications with, forcing him to change the
pay telephone he was using multiple times during a phone call which
cost him “an egregious amount of money,” arbitrarily denying
extensions of time when he was late returning to the Buffalo
Halfway House due to unfamiliarity with the public transportation
Plaintiff and his family, and filing a “false violation notice”
that resulted in Plaintiff’s being returned to prison.
The Third Cause of Action
Plaintiff’s Third Cause of Action (Compl. ¶¶ 68-79) primarily
complains that Diggs ordered the kitchen staff at the Buffalo
allegedly resulted in the deterioration of his medical condition on
June 28, 2012.
The Fourth Cause of Action
Plaintiff’s Fourth Cause of Action (Compl. ¶¶ 80-100) contains
allegations that the kitchen staff at the Buffalo Halfway House did
not know how to prepare Kosher food and served him spoiled gefilte
fish on June 12, 2012; that Davis and Griggs worked in concert to
deny residents the ability to use the water cooler which was
refilled with tap water; that he was denied his evening snack on
July 2, 2012; and that Diggs wrote a letter stating that if
Plaintiff did not take her advice regarding his medical treatment,
he would be formally charged with a program violation.
As discussed more fully below, even giving the allegations in
the pro se Complaint the broadest construction possible, they do
not state plausible claims for relief under the legal theories
relied on by Plaintiff.
17 C.F.R. Ch. 2 § 240.15(c)1-2
Plaintiff has failed to allege a plausible cause of action
under “17 C.F.R. Ch. 2 § 240.15(c)1-2,” which deals with net
capital requirements for brokers or dealers. This section of the
Code of Federal Regulations simply is not relevant to Plaintiff’s
Civil Rights Claims
In order to recover in an action under 42 U.S.C. § 1983, a
statutory rights by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988). Judges in this District have
held that the Buffalo Halfway House is not a state actor for
purposes of Section 1983 liability. See, e.g., Phillips v. Goord,
No. 08-CV-0957A(F), 2009 WL 909593, at *3 (W.D.N.Y. Apr. 1, 2009)
(“Because there are no allegations that the Buffalo Halfway House
nor defendant Greathouse are ‘state actors’ the complaint fails to
state a claim upon which relief can be granted. The Buffalo Halfway
House, Inc's website states that ‘[it was] incorporated in 1983,
[and] was formerly known as BUILD’S Halfway House, founded in 1974
organization. The halfway house is a not-for-profit agency . . . .’
This alone would lead one to conclude that the Buffalo Halfway
House is a private organization, that is not subject to liability
under § 1983. While generally the Court would provide plaintiff an
opportunity to amend the complaint with respect to this issue, such
an amendment would be futile because the claim of retaliation
itself fails to state a claim upon which relief could be granted.”)
(internal citation omitted).
To the extent Plaintiff attempts to state a Bivens1 type claim
based on Defendant’s alleged Eighth Amendment violations, this
similarly must fail. See, e.g., Minneci v. Pollard, 565 U.S. 118,
(2012) (“[W]here, as here, a federal prisoner seeks damages
from privately employed personnel working at a privately operated
federal prison, where the conduct allegedly amounts to a violation
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
of the Eighth Amendment, and where that conduct is of a kind that
typically falls within the scope of traditional state tort law
(such as the conduct involving improper medical care at issue
here), the prisoner must seek a remedy under state tort law. We
cannot imply a Bivens remedy in such a case.”); see also Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 63, 70-71 (2001) (holding
that a Bivens action does not lie against a private corporation
that manages a facility housing federal prisoners).
Furthermore, any Section 1983 or Bivens claim is time-barred.
Although the statute of limitations is an affirmative defense, and
must generally await a defense motion, dismissal is appropriate
where, as here, supporting the statute of limitations defense are
See Sledge v. Guest, 107 F.3d 4, 1996 WL 779921, at *1 (2d Cir.
1996) (unpublished opn.) (“[T]he district court has the power to
dismiss a complaint sua sponte on statute-of-limitations grounds
where the facts supporting that defense are set forth in the
plaintiff’s own papers, see, e.g.,
Leonhard v. United States, 633
F.2d 599, 609 n. 11 (2d Cir.1980), cert. denied, 451 U.S. 908
(1981). . . .”); see also Griffen v. Doe, 71 F. Supp.3d 306, 317-18
(N.D.N.Y. 2014) (sua sponte dismissing pro se plaintiff’s Bivens
claim based on statute limitations grounds).
“The statute of limitations for claims brought under Section
1983 is governed by state law, and in this case [it] is the
three-year period for personal injury actions under New York State
law.” Shomo v. City of N.Y., 579 F.3d 176, 181 (2d Cir. 2009)
(citation omitted). The statutes of limitations for a Bivens action
in Plaintiff’s case likewise is borrowed from New York’s statute of
United States, 150 F.3d 112, 123 (2d Cir. 1998) (“Federal Courts in
New York apply a three-year statute of limitations period to Bivens
claims.”). Ordinarily, a Section 1983 or Bivens claim “accrues when
the plaintiff knows or has reason to know of the harm.” Eagleston
omitted). The Second Circuit has held that the district court may,
but need not, apply “the continuing violation doctrine . . . when
a prisoner challenges a series of acts that together comprise an
medical needs.” Shomo, 579 F.3d at 182.
“To assert a continuing
violation for statute of limitations purposes, the plaintiff must
‘allege both the existence of an ongoing policy of [deliberate
non-time-barred acts taken in the furtherance of that policy.’” Id.
(quoting Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999);
brackets in original).
Plaintiff’s Complaint was filed on April 20, 2016. The latest
constitutional violation was July 2, 2012. On that date, Plaintiff
alleged, “Diggs sent [him] a memorandum thru [sic] her constituent
Michael Macaluso harassing Plaintiff” and “stat[ing] that Plaintiff
will not receive the treatment of his medical condition as his
health care provider instructed [Buffalo Halfway House] staff to
abide to.” (Compl. ¶ 99). It is, however, unclear what treatment
was denied by Diggs.2 In any event, for his claim to be timely,
Plaintiff was required to allege at least one constitutional
violation within three years of the filing of the Complaint on
April 20, 2016. The date of the last incident he alleges, July 2,
2012, was 3 years, 9 months, and 18 days prior to the date the
Complaint was filed. Therefore, any claim under Section 1983 or
Bivens is untimely.
The Court has considered possible equitable tolling of the
statute of limitations, and finds that there is no basis suggested
by the Complaint’s allegations for invoking that equitable doctrine
in this action. See Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.
extraordinary circumstances prevented him from filing the complaint
on time, and that he acted with reasonable diligence throughout the
period that he seeks to toll).
Portability and Accountability Act of 1996, § 102(a), 42 U.S.C.A.
§ 300gg–22, creates a private right of action has not been answered
by the Second Circuit. Those “Circuits that have considered the
issue agree that HIPAA creates no private right of action.” Bond v.
There is one later date mentioned, July 5, 2012, on which Plaintiff asserts
that he attempted to “protect his interest regarding the use of the water cooler”
as he and the other residents “battled dehydration,” but Diggs advised him to
“mind his business.” (Id. ¶ 100). However, the allegations regarding that date
do not assert a constitutional violation.
Connecticut Bd. of Nursing, 622 F. App’x 43, 44 (2d Cir. 2015)
(8th Cir.2010); Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n. 4
(10th Cir.2010); United States v. Streich, 560 F.3d 926, 935 (9th
Cir. 2009); Acara v. Banks, 470 F.3d 569, 570–71 (5th Cir. 2006);
Warren Pearl Const. Corp. v. Guardian Life Ins. Co. of Am., 639 F.
Supp.2d 371, 377 (S.D.N.Y. 2009) (collecting cases across multiple
circuits and district courts)).
In Bond, the Second Circuit expressed “doubt” whether HIPAA
provided a private cause of action but declined to decide the
issue, because any such cause of action “that may exist under HIPAA
would not have a longer statute of limitations than either the ADA
or Rehabilitation Act claims [asserted by the plaintiff]. . .,
which [were] time-barred.” Bond, 622 F. App’x at 44. In New York,
ADA and Rehabilitation Act claims are both subject to a three-year
statute of limitations. See De La Rosa v. Lewis Foods of 42nd
Street, LLC, 124 F. Supp.3d 290, 299 n. 14 (S.D.N.Y. 2015) (ADA);
Logan v. Matveevskii, 57 F. Supp.3d 234, 267 (S.D.N.Y. 2014)
(Rehabilitation Act). Plaintiff alleges that Defendants violated
HIPAA on June 6, 2012, when they questioned why he was requesting
milk or a biscuit with which to take his medications. (Compl.
¶ 32). This incident, which occurred three years, ten months, and
fourteen days prior to the filing of the Complaint, is outside the
three-year limitations period. Therefore, even if Plaintiff had a
cognizable claim under HIPAA, it is untimely.
False Claims Act
Defendants under the federal False Claims Act (“FCA”), which “is
intended to recover damages from those who defraud the federal
government” and which “imposes liability on those who knowingly
present, or cause to be presented, false or fraudulent claims for
payment, or knowingly make, use, or cause to be used, false records
or statements to get false claims paid or approved.” United States
v. Empire Educ. Corp., 959 F. Supp.2d 248, 253 (N.D.N.Y. 2013)
(citing 31 U.S.C. § 3729(a)(1)(A) & (B). Private persons, known as
“relators,” may file qui tam actions (i.e., actions on behalf of
the government) based on alleged violations of Section 3729. See 31
U.S.C. § 3730(c)(3).
As an initial matter, it is clear that Plaintiff is not
seeking to vindicate any rights belonging to the federal Bureau of
Prisons or any other federal government agency. Rather, he is
seeking redress for injury caused by Defendants to himself. (See
Compl. ¶ 58 (“[O]n 6-30-12 Woods did manage to cause harm to
Plaintiff, providing false information to [Buffalo Halfway House]
management and concluding her sociopathic crusade against him.”)).
Moreover, even assuming Plaintiff intended to file suit on behalf
of the federal government, he has failed to state a claim under the
FCA. Despite several amendments, the FCA’s
focus remains on those who present or directly induce the
submission of false or fraudulent claims. A “claim” now
includes direct requests to the Government for payment as
well as reimbursement requests made to the recipients of
federal funds under federal benefits programs. The
[FCA]’s scienter requirement defines “knowing” and
“knowingly” to mean that a person has “actual knowledge
of the information,” “acts in deliberate ignorance of the
truth or falsity of the information,” or “acts in
reckless disregard of the truth or falsity of the
information.” And the [FCA] defines “material” to mean
“having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or
Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989,
misbehavior report against him which caused him to be expelled from
the Buffalo Halfway House fall far outside the ambit of conduct
which the FCA is intended to address.
Pendent State Law Claims
“In an action in which the federal court has jurisdiction by
exercise supplemental jurisdiction (which has its origins in the
judicial doctrine of pendent jurisdiction) over related claims
asserted under state law.” Volmar v. N. Shore Hosp., 216 F. App’x
136, 137 (2d Cir. 2007) (citing 28 U.S.C. § 1367(a)). Where all
federal claims are eliminated before trial, “the balance of factors
to be considered under the pendent jurisdiction doctrine—judicial
declining to exercise jurisdiction over the remaining state-law
claims.” Id. (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
350 n. 7 (1988); 28 U.S.C. § 1367(c)(3); other citation omitted).
Such is the case here.
Since the basis for the Court’s jurisdiction is the alleged
federal nature of Plaintiff’s federal claims, and since the Court
is dismissing these claims with prejudice for failure to state a
claim, it is appropriate for the Court to decline to exercise
Complaint. The dismissal of Plaintiff’s state law claims is without
prejudice, however. See Volmar, 216 F. App’x at 138 (“[O]nce
Volmar’s federal claims were dismissed on motion, any alleged
state-law claims should have been dismissed without prejudice on
supplemental jurisdiction over them. Although it is not clear to us
that state-law claims were asserted, we direct that the judgment be
modified to clarify that the dismissal of any asserted state-law
claim is based on a lack of jurisdiction. Such a dismissal does not
foreclose Volmar’s pursuit of such a state-law claim in state
Leave to Amend is Unwarranted
Where a pro se litigant’s complaint fails to state a cause of
action, the court generally “should not dismiss 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) (citation and
internal quotation marks omitted). However, where “the problem with
[the plaintiff’s] causes of action is substantive” such that
“better pleading will not cure it[,]” Cuoco, 222 F.3d at 112
(citation omitted), an opportunity to amend is not required. As
discussed above in this Decision and Order, the problems with
Plaintiff’s purported causes of action are substantive and cannot
be remedied by better pleading. Therefore, amendment would be
futile, and the Court declines to grant Plaintiff an opportunity to
replead his Complaint. See id. (finding leave to replead would be
futile where the complaint, even when read liberally, did not
inadequately or inartfully pleaded and that she should therefore be
given a chance to reframe”).
For the foregoing reasons, the federal claims in Plaintiff’s
Complaint are dismissed with prejudice for failure to state a
claim, and any state law claims in the Complaint are dismissed
without prejudice. Plaintiff is cautioned that his right to pursue
further relief in federal court at public expense will be greatly
curtailed if he has three actions or appeals dismissed under the
provisions of 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. See 28 U.S.C.
§ 1915(a)(3), that any appeal from this Order would not be taken in
good faith, and leave to appeal to the Court of Appeals as a poor
person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal as a poor person should be
directed, on motion, to the United States Court of Appeals for the
Second Circuit, in accordance with Rule 24 of the Federal Rules of
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
February 11, 2017
Rochester, New York
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