# Aikens v. Cerrito

> District Court, E.D. New York · September 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10303069

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303069

## How later opinions describe it (automated extraction)

- stating that the “personal involvement of defendants in alleged constitutional deprivations is a pre[-]requisite to an award of damages under § 1983” (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994))

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
ANTHONY AIKENS,
NOT FOR PUBLICATION
Plaintiff,
MEMORANDUM & ORDER
- against - 19-CV-5168 (PKC) (LB)

JONATHAN M. CERRITO,
NANCY RUSSO, and THOMAS RUSSO,

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On September 5, 2019, Plaintiff Anthony Aikens, currently incarcerated at Attica
Correctional Facility, filed this pro se action pursuant to 42 U.S.C. § 1983 (“§ 1983”). (See
Complaint (“Compl.”), Dkt. 1.) Plaintiff sues Jonathan M. Cerrito, an attorney engaged by the
Blasters, Drillrunners & Miners Union Local 29 Pension Fund (the “Fund”), and Nancy Russo and
Thomas Russo, the current and former Fund Administrators of the Fund. (Id. at ECF1 2.) The
Court grants Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. For
the reasons set forth below, the Court dismisses the complaint, but Plaintiff may file an amended
complaint within thirty (30) days of this Memorandum and Order.
BACKGROUND
Plaintiff was granted social security disability insurance benefits on December 23, 2002
for an injury suffered in August 1999. (Exhibit D, Dkt. 1, at ECF 11−16.) Plaintiff obtained a
disability pension from the Fund on April 11, 2003. (Compl., Dkt. 1, at ECF 4.) Plaintiff was
incarcerated on November 2, 2004 and stopped receiving his disability pension in December 2004.

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
(Id. at ECF 3.) On January 27, 2012, Thomas Russo, then Fund Administrator, informed Plaintiff
that in order for Plaintiff to continue to receive his pension, he needed to submit proof that he had
been continuously receiving social security disability benefits since 2005. (Id. at 4; Exhibit C,
Dkt. 1, at ECF 10.) After failed attempts to obtain such proof, Plaintiff contacted the Department
of Labor for assistance. (Compl., Dkt. 1, at ECF 4.) The Department of Labor contacted Jonathan

M. Cerrito, the Fund’s attorney, who also demanded proof of Plaintiff’s receipt of social security
benefits. (Id. at ECF 5.) Nancy Russo is the current Fund Administrator. (Id.)
Plaintiff alleges that Thomas Russo and Nancy Russo have discriminated against him by
withholding his pension benefits since he has been incarcerated in violation of the Fourteenth
Amendment and that Defendants conspired to withhold Plaintiff’s pension since his incarceration
in violation of 42 U.S.C. §§ 1983 and 1985. (Id. at ECF 5−6.) Plaintiff is suing Defendants in
their individual capacity and seeks his pension benefits with interest for the period from January
2005 to the present and $15 million in damages, along with attorney’s fees and costs. (Id. at ECF
6.)

STANDARD OF REVIEW
Pursuant to the in forma pauperis statute, this Court must dismiss a case if the Court
determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). To avoid dismissal, a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim will be considered plausible on its face “when the plaintiff pleads factual content that
allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “detailed factual allegations” are
not required, a complaint is insufficient to state a claim “if it tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
At the same time, federal courts give “extra leeway” to pro se plaintiffs. In re Sims, 534
F.3d 117, 133 (2d Cir. 2008). When determining the sufficiency of a pro se complaint, the Court
must look for the strongest arguments that the complaint suggests. Erickson v. Pardus, 551 U.S.

89, 94 (2007); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191–93 (2d Cir. 2008).
If this liberal reading of the complaint “gives any indication that a valid claim might be stated,”
the Court must give the plaintiff an opportunity to amend the complaint. Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).
DISCUSSION
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983, which provides remedies for the
deprivation of federal constitutional rights. (Compl., Dkt. 1, at ECF 1.) In order to maintain an
action under § 1983, a plaintiff must adequately allege two essential elements. First, “[t]he conduct
at issue ‘must have been committed by a person acting under color of state law.’” Cornejo v. Bell,

592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)).
Second, the conduct “must have deprived a person of rights, privileges, or immunities secured by
the Constitution or laws of the United States.” Id. (internal quotation marks omitted) (quoting
Pitchell, 13 F.3d at 547). Further, a plaintiff seeking to recover money damages under § 1983
must establish that the defendants were personally involved in the wrongdoing or misconduct at
issue in the complaint. Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (stating that the
“personal involvement of defendants in alleged constitutional deprivations is a pre[-]requisite to
an award of damages under § 1983” (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994))).
Construed liberally, Plaintiff’s complaint only names private actors, who did not act under
color of state law. “[T]he under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citation omitted). “Because the
United States Constitution regulates only the Government, not private parties, a litigant claiming

that his constitutional rights have been violated must first establish that the challenged conduct
constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)
(internal quotation marks omitted). A plaintiff bringing suit under § 1983 is therefore required to
demonstrate that the defendants acted under color of state law when they engaged in the challenged
conduct. See Fabrikant v. French, 691 F.3d 193, 206−07 (2d Cir. 2012). Defendants—the former
and current Fund Administrators of the Fund, a private entity, and the Fund’s attorney—are private
individuals. None of Defendants can be inferred to have been acting under color of state law with
respect to Plaintiff’s claims in this action.
Therefore, Plaintiff’s § 1983 claims against all Defendants must be dismissed for failure to

state a claim. See Talton v. United Techs. Corp., No. 3:07-CV-00766 (PCD), 2007 WL 4225794,
at *2 (D. Conn. Nov. 28, 2007) (dismissing a prisoner’s § 1983 claim seeking pension benefits on
the grounds of failure to name a state actor).
CONCLUSION
For the reasons stated, Plaintiff’s claims are dismissed for failure to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal would not be taken in good faith, and therefore, in forma pauperis
status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444–45
(1962).
Because the Second Circuit has made clear that district courts “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, 222 F.3d at 112, the Court grants Plaintiff thirty (30)
days to file an amended complaint. If Plaintiff has a genuine basis for a § 1983 claim or other
federal claim, he should provide specific facts in support of that claim.2 The Court notes that

Plaintiff may be able to challenge the Fund’s withholding of benefits under the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq., depending on the
requirements of ERISA plan to qualify Plaintiff for disability benefits. See Kagan v. Unum
Provident, 775 F. Supp. 2d 659, 666 (S.D.N.Y. 2011) (detailing continued payment of disability
benefits under ERISA plan notwithstanding incarceration); see also Ellison v. Jorgensen, No. 17-
CV-2432, 2017 WL 6816538, at *2 (N.D. Ill. Nov. 29, 2017), appeal dismissed, 733 F. App’x 308
(7th Cir. 2018) (noting “the possibility that a claim might be plausible under [ERISA]” when
dismissing the § 1983 claim over the withholding of pension benefits); cf. Kagan, 775 F. Supp. 2d
at 677 (“the statutory definition of “disability” [for social security] is not binding on the

interpretation of an ERISA plan’s definition of the term.”). If Plaintiff elects to file an amended
complaint, it shall be captioned “AMENDED COMPLAINT” and bear the same docket number
as this Memorandum and Order, 19-CV-5168 (PKC) (LB). All further proceedings shall be stayed
for thirty (30) days or until further Order of the Court. If Plaintiff fails to file an amended
complaint within the time allowed, the Court will enter judgment dismissing this action.

2 Plaintiff is advised that pursuant to the No Social Security Benefits for Prisoners Act (“the
Act”), the Social Security Administration is barred from making social security benefits payments
to prisoners. Fowlkes v. Thomas, 667 F.3d 270, 271−72 (2d Cir. 2012) (“[N]o payments shall be
made to prisoners after the Act’s enactment, even if the underlying obligation to pay predates the
Act.”); 42 U.S.C. § 1383(b)(8)(A).
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 24, 2019
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303069. Public record. Not legal advice.