Rodriguez v. Gosselin

Filing 25

ENTRY ORDER Granting Plaintiff Leave to Amend his Initial Complaint, Denying as Moot 14 Defendant's Initial Motion to Dismiss, and Granting 20 Defendant's Second Motion to Dismiss. Plaintiff's 20 Amended Complaint will be DISMISSED if a motion for leave to amend is not filed by March 27, 2018. Signed by Judge Christina Reiss on 3/13/2018. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

JUAN RODRIGUEZ,
Plaintiff,
V.

RICK GOSSELIN,
Defendant.

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2018 MAR I 3 PM I: 31

Case No. 2:l 7-cv-133

ENTRY ORDER GRANTING PLAINTIFF LEAVE TO AMEND HIS INITIAL
COMPLAINT, DENYING AS MOOT DEFENDANT'S INITIAL
MOTION TO DISMISS, AND GRANTING DEFENDANT'S SECOND
- MOTION TO DISMISS
(Docs. 14, 20)

Plaintiff Juan Rodriguez, who is self-represented, brings this civil action against
Defendant Rick Gosselin alleging Defendant Gosselin violated his civil rights in violation
of 42 U.S.C. § 1983 (Doc. 5). The case was removed to this court from state court in
July 2017. Defendant moved to dismiss the Complaint on July 28, 2017 (Doc. 14). After
opposing the motion, and successfully seeking an opportunity to file a sur;.reply, Plaintiff
filed an Amended Complaint in November 2017 (Doc. 19). Defendant again moved to
dismiss (Doc. 20). Following the filing of Plaintiff's opposition and Defendant's reply, 1
Defendant's second motion to dismiss is ripe for adjudication.
I.

The Allegations of the Amended Complaint.

The facts of both the original Complaint and the Amended Complaint are
substantially the same. Plaintiff alleges he attended a custody hearing in state family
court on March 24, 2017. After the hearing, Plaintiff conversed with his attorney in

1

Without seeking leave of court, Plaintiff also filed a sur-reply, which is not automatically
allowed by the court's local rules. See D. Vt. L.R. 7(a). In light of Plaintiff's self-represented
status, the court grants leave to file it and has considered it.

Spanish. Defendant, an Orleans County sheriff, said: "Speak English, this is America[,]"
and made a derogatory comment about Mexicans. (Doc. 5 at 1; Doc. 19 at 2.) Plaintiff
responded: "I am not Mexican. I am Puerto Rican." Id.
Plaintiff alleges Defendant violated his constitutional rights to association,
counsel, access to the courts, and free speech. In his original Complaint, Plaintiff sought
compensatory damages of $1, nominal damages of $50,000, and punitive damages of
$50,000. In his Amended Complaint, he now seeks nominal damages of $1,
compensatory damages of$500,000, and punitive damages of $500,000.

II.

Conclusions of Law and Analysis.
A document filed by a self-represented litigant must be liberally construed. Ahlers

v. Rabinowitz, 684 F.3d 53, 60 (2d Cir. 2012). Plaintiff requests the court allow him to

amend his Complaint under Federal Rule of Civil Procedure 15(a)(2), which requires the
opposing party's written consent or the court's leave. Fed. R. Civ. P. 15(a)(2). "The
court should freely give leave when justice so requires." Id. Because Defendant has
responded to the Amended Complaint with a motion to dismiss that is fully briefed, the
court allows the amendment and considers the Amended Complaint the operative
Complaint. Hancock v. Cty. ofRensselaer, 882 F.3d 58, 63 (2d Cir. 2018) ("'It is well
settled that an amended pleading ordinarily supersedes the original and renders it of no
legal effect[.]"') (quoting In re Crysen /Montenay Energy Co., 26 F.3d 160, 162 (2d Cir.
2000)). Accordingly, Plaintiffs request to amend his initial Complaint is GRANTED,
and Defendant's initial motion to dismiss Plaintiffs original Complaint is DENIED AS
MOOT. (Doc. 14.)
Defendant moves to dismiss the Amended Complaint under Federal Rule of Civil
Procedure 12(b)( 6) for failure to state a claim upon which relief can be granted, arguing
he is an improper defendant and Plaintiffs allegations are insufficient to state a plausible
claim under 42 U.S.C. § 1983. Plaintiff responds that Defendant is a proper defendant

because he is suing him in his individual and official capacities and asks that dismissal be
denied.

2

_In adjudicating a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court
must "accept as true all of the allegations contained in a complaint" and determine
whether the complaint states a claim for relief that is "plausible on its face." Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While "lenity ...
must attend the review of prose pleadings[,]" prose litigants nevertheless must satisfy
the plausibility standard set forth in Iqbal and Federal Rule of Civil Procedure 12(b)(6).

Harris v. Mills, 572 F .3d 66, 68 (2d Cir. 2009). "[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions."

Iqbal, 556 U.S. at 678.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... , subjects, or causes to be subjected[] ...
[any] person within the jurisdiction [of the United States] 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[] ... or other
proper proceeding for redress [.]
42 U.S.C. § 1983. The statute is "not itself a source of substantive rights" but rather
provides "a method for vindicating federal rights elsewhere conferred[.]" Patterson v.

Cty. of Oneida, 375 F.3d 206,225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)). To prevail on a claim under§ 1983, a plaintiff "must allege
( 1) 'that some person has deprived him of a federal right,' and (2) 'that the person who
has deprived [the plaintiff] of that right acted under color of state ... law.'" Velez v.

Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640
(1980)).
Assuming without deciding that Defendant is a proper defendant, Plaintiffs
Amended Complaint nonetheless must be dismissed. Plaintiff alleges Defendant
abridged his rights to both "expressive" and "intimate" freedom of association under the
First Amendment. Plaintiffs right to intimate association, however, is not implicated in
this case. While "choices to enter into and maintain certain intimate human relationships
must be secured against undue intrusion by the State because of the role of such
3

relationships in safeguarding the individual freedom that is central to our constitutional
scheme[,]" the "personal affiliations" warranting protection are "those that attend the
creation and sustenance ofa family[.]" Roberts v. US. Jaycees, 468 U.S. 609, 617-19
(1984 ). Because Plaintiffs relationship with his attorney does not rise to the level of a
protected personal affiliation and he does not allege Defendant intruded on his family
relationships, he fails to state a claim for violation of his right to intimate association.
Freedom of association includes the "right to associate for the purpose of engaging
in those activities protected by the First Amendment-speech, assembly, petition for the
redress of grievances, and the exercise of religion." Id. at 618. Individuals have a "right
to join together to advocate opinions free from government interference." Boy Scouts of
Am. v. Dale, 530 U.S. 640, 701 (2000). The First Amendment's expressive associational

right protects groups that "engage[] in 'expressive association[,]'" and "is not reserved
for advocacy groups[, b]ut to come within its ambit, a group must engage in some form
of expression[.]" Id. at 648. Plaintiff must demonstrate the expressive association was
pursued for "political or other goals independently protected by the [F]irst
[A]mendment." Brady v. Town of Colchester, 863 F.2d 205,217 (2d Cir. 1988).
Generally, individuals do not enter a professional relationship with an attorney "to
convey any social or political message." Young v. NYC Transit. Auth., 903 F.2d 146,
153 (2d Cir. 1990). Because Plaintiff has failed to allege his association with his attorney
was pursued for political or other reasons protected by the First Amendment, he fails to
state a claim for violation of his right to expressive association.
Plaintiff also alleges Defendant violated his constitutional right to counsel.
Plaintiff, however, concedes he had no constitutional right to court-appointed counsel at
the state family court proceeding. He further alleges that Defendant's statement occurred
after the state court hearing had concluded and in no way interfered with his right to
participate in that proceeding. Against this backdrop, Plaintiff's argument that his

allegation "that Gosselin violated his right to counsel states a 'cognizable' ... claim of
'interference with his associational rights'" remains a bare legal conclusion. (Doc. 21
at 3.)
4

Plaintiff next contends that Defendant violated his constitutional right-of-access to
the court system. Courts have recognized two variants of right-of-access claims:

(1) "forward-looking," alleging "systemic official action" frustrated the ability to file a
suit and seeking removal of the frustrating condition; and (2) "backward-looking,"
alleging a suit can no longer be tried no matter what official action may be taken in the
future. Sousa v. Marquez, 702 F.3d 124, 127-28 (2d Cir. 2012) (internal quotation marks
omitted). A backward-looking claim may be stated if, for example, "official action
caused the loss or inadequate settlement of a meritorious case." Id. at 128 (internal
quotation marks and citation omitted).
Assuming a backward-looking claim is available, 2 Plaintiff fails to allege either
type of a right-of-access claim because "the right is ancillary to the underlying claim[.]"

Id. at 128 (internal quotation marks and citation omitted). To state an access to court
claim, Plaintiff must allege Defendant caused him "injury or, put less succinctly, that the
defendant took or was responsible for actions that had the actual effect of frustrating the
plaintiffs effort to pursue a legal claim." Oliva v. Town of Greece, 630 F. App'x 43, 45
(2d Cir. 2015). Here, Plaintiff does not allege he was frustrated in his ability to file a suit
or that he lost or inadequately settled a case. 3 Without an underlying claim, "a plaintiff
cannot have suffered injury by being shut out of court." Id. (internal quotation marks and
citation omitted).
Finally, Plaintiff alleges Defendant violated his constitutional right to free speech.
The First Amendment, applicable to the states through the Fourteenth Amendment,
prohibits laws "abridging the freedom of speech[.]" U.S. CONST. amend. I. The right to
free speech extends "to the right to listen and receive information." Kass v. City ofNew
2

The Second Circuit Court of Appeals has not endorsed a backward-looking right-of-access
claim and the Supreme Court '"assume[d], without deciding, the correctness of the [courts of
appeals] decisions' recognizing" such a claim. Sousa v. Marquez, 702 F.3d 124, 128 (2d Cir.
2012) (quoting Christopher v. Harbury, 536 U.S. 403,414 n.9 (2002)).
3

For this reason, Plaintiffs assertion that his conversation with his attorney "was with respect to
the court proceeding" is insufficient. (Doc. 21 at 3.) In the absence of an allegation that his
right-of-access was curtailed by some state action, he fails to state a claim for relief under an
access to court theory.
5

York, 864 F.3d 200, 207 (2d Cir. 2017). "It is well settled that verbal harassment,
inexcusable as it may be, does not rise to the level of a constitutional violation."

Zimmerman v. Seyfert, 2007 WL 2080517, at *28 (N.D.N.Y. July 19, 2007) (citations
omitted); see also Arce v. Banks, 913 F. Supp. 307, 309 (S.D.N.Y. 1996) ("[The
plaintiffs] allegation that [a state official] 'yelled' at him does not rise to the
constitutional level since yelling, cursing, or even race-baiting does not violate any
constitutionally protected rights."); Haussman v. Fergus, 894 F. Supp. 142, 149
(S.D.N.Y. 1995) ("[T]aunts, insults and racial slurs alleged to have been hurled at
plaintiff by defendants, while reprehensible if true, do not comprise an infringement of
constitutional guarantees."). Even assuming the alleged comments Defendant made to
Plaintiff regarding speaking Spanish and his presumed nationality were verbal
harassment and racially offensive, without any injury or damage, the allegation does not
state a claim. Plaintiff does not allege that either he or his attorney was prevented by
Defendant from communicating in Spanish, only that Defendant inappropriately told
them to speak English and made derogatory comments about an ethnicity to which
Plaintiff does not belong. These facts are insufficient to state a plausible claim for relief.

See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (holding claim prison guard
called plaintiff names "did not allege any appreciable injury and was properly
dismissed").
Because Plaintiffs Amended Complaint fails to state a claim upon which relief
can be granted, Defendant's motion to dismiss must be GRANTED and the Amended
Complaint DISMISSED. See Fed. R. Civ. P. 12(b)(6). The Second Circuit has cautioned
that a district court "should not dismiss a pro se complaint 'without granting leave to
amend at least once,' unless amendment would be futile." Garcia v. Superintendent of

Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (per curiam) (quoting
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this case, it appears that
amendment would be futile as better pleading would not cure the deficiencies in the
Amended Complaint. The court therefore does not grant leave to amend sua sponte.
Plaintiff may, however, petition the court for leave to amend should he desire to do so.
6

CONCLUSION
The court GRANTS Plaintiff leave to amend his initial Complaint under Federal
Rule of Civil Procedure 15(a)(2) and file the Amended Complaint (Doc. 19). In light of
the amendment, Defendant's motion to dismiss the original Complaint is DENIED AS
MOOT (Doc. 14). For the reasons set forth above, Defendant's motion to dismiss the
Amended Complaint is GRANTED (Doc. 20) and Plaintiffs Amended Complaint will be
DISMISSED (Doc. 19) if a motion for leave to amend is not filed by March 27, 2018.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

f Jt'--day of March, 2018.

~udge
United States District Court

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