Porter v. Hladky

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JASON PORTER,

Plaintiff,

MEMORANDUM & ORDER

-against- 19-CV-1408(JS)(ARL)

KRISTIAN BARLING GAME,

PAROLE OFFICER ZRAKE,

Defendants.

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APPEARANCES

For Plaintiff: Jason Porter, pro se

19-A-3761

Downstate Correctional Facility

Red Schoolhouse Road

P.O. Box F

Fishkill, New York 12524

For Defendants: No appearances.

SEYBERT, District Judge:

On March 11, 2019 incarcerated pro se plaintiff Jason

Porter (“Plaintiff”) filed a Complaint in this case together with

a motion to proceed in forma pauperis. On April 18, 2019 Plaintiff

filed a second Complaint together with a motion to proceed in forma

pauperis. (See Jason Porter v. Kristian Barling Green, No. 19-

CV-2273.) By Memorandum and Order dated September 27, 2019, (see

M&O, D.E. 9), the Court consolidated these two actions into the

first-filed docket; dismissed the in forma pauperis Complaints

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1), and

granted Plaintiff leave to file an Amended Complaint within thirty

(30) days from the date of the M&O. On October 17, 2019, Plaintiff

timely filed an Amended Complaint against Kristian Barling Game

(“Game”) and Parole Officer Zrake (“Zrake” and together

“Defendants”). For the following reasons, the Amended Complaint

fails to allege a plausible claim against Defendants and the

Amended Complaint is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)

(2)(B)(i)-(iii), 1915A(b)(1)-(2).

THE AMENDED COMPLAINT1

Plaintiff’s Amended Complaint, brought pursuant to 42

U.S.C. § 1983, continues to allege that Game, a substance abuse

counselor at Eastern Long Island Hospital, “create[d] a fraudulent

discharge [plan]” and sent it to Zrake at the Suffolk County Parole

Office. (Am. Com., D.E. 12, at 1-2.) According to the Amended

Complaint, Zrake “manipulated” and “induc[ed]” Game, on

November 13, 2018, after Plaintiff had already shown Zrake the

original discharge plan, to create a backdated discharge plan that

reflected that Plaintiff had been “kicked . . . out of the program

on 11/11/18.” (Am. Compl. at 1-2.) Plaintiff claims that Zrake

and Game “conspired” to violate Plaintiff’s due process right by

1 The following facts are taken from Plaintiff’s Complaints and

are presumed to be true for the purposes of this Order.

Excerpts from the Complaints as reproduced here exactly as they

appear in the originals. Errors in spelling, punctuation, and

grammar have not been corrected or noted.

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creating the second, false discharge plan, which was then used as

the basis to issue a warrant for Plaintiff’s arrest for a parole

violation. (Am. Compl. at 2-3.) As a result, Plaintiff claims

to have had to undergo “mental health treatment and consume several

different physic medication[s].” (Am. Compl. at 3.) Although

the original Complaints sought exclusively monetary damages in the

total sum of twelve million dollars ($12,000,000.00), (see 19-CV-

1408, Compl., D.E. 1, ¶ III; 19-CV-2273, Compl., D.E. 1, ¶ III),

the Amended Complaint does not seek any relief. (Am. Compl. at 4.)

DISCUSSION

I. Application of 28 U.S.C. § 1915

Having granted Plaintiff’s application to proceed in

forma pauperis, (see M&O at 6-7), the Court must determine whether

the Amended Complaint alleges a plausible claim for relief.

Section 1915 of Title 28 requires a district court to dismiss an

in forma pauperis complaint if the action is frivolous or

malicious, fails to state a claim upon which relief may be granted,

or seeks monetary relief against a defendant who is immune from

such relief. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b).

The Court is required to dismiss the action as soon as it makes

such a determination. See id. § 1915A(b).

Courts are obliged to construe the pleadings of a pro se

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plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint or amended complaint

must plead sufficient facts to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim

has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(citations omitted). The plausibility standard requires “more

than a sheer possibility that a defendant has acted unlawfully.”

Id. at 678; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120,

128 (2d Cir. 2011). While “‘detailed factual allegations’” are

not required, “[a] pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action

will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 555).

II. Section 1983

Section 1983 provides that

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

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States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983; accord Rehberg v. Paulk, 566 U.S. 356, 361, 132

S. Ct. 1497, 1501B02, 182 L. Ed. 2d 593 (2012). To state a claim

under Section 1983, a plaintiff must “‘allege that (1) the

challenged conduct was attributable at least in part to a person

who was acting under color of state law and (2) the conduct

deprived the plaintiff of a right guaranteed under the Constitution

of the United States.’” Rae v. Cty. of Suffolk, 693 F. Supp. 2d

217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53

(2d Cir. 1999)).

As noted above, to state a plausible Section 1983 claim,

a plaintiff must allege that the challenged conduct was committed

by a person action under color of state law. Thus, private parties

are not generally liable under a Section 1983. Section 1983

liability may only be imposed upon wrongdoers “who carry a badge

of authority of a State and represent it in some capacity, whether

they act in accordance with their authority or misuse it.” Nat’l

Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191, 109 S.

Ct. 454, 461, 102 L. Ed. 2d 469 (1988) (citation omitted).

A. Game is not a State Actor

Here, Game is alleged to be employed at Eastern Long

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Island Hospital Rehabilitation Center. Private conduct is

generally beyond the reach of § 1983. See Am. Mfrs. Mut. Ins. Co.

v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 985, 143 L. Ed.

2d 130 (1999); Vaughn v. Phoenix House Programs of N.Y., 14-CV-

3918, 2015 WL 5671902, at *4 (S.D.N.Y. Sept. 25, 2015) (Section

1983 claims “fail[ed] as a matter of law because neither [the

hospital] nor the individual [d]efendants are state actors, nor

were they acting under color of law.”); see also Melvin v. State

of Conn., 16-CV-0537, 2017 WL 3841689, *3-4 (D. Conn. Sept. 1,

2017) (finding private residential drug treatment program was not

a state actor for Section 1983 purposes where plaintiff resided at

the facility as a condition of parole). Indeed, “courts have

consistently held that drug treatment facilities that treat

individuals pursuant to a condition of parole are not performing

a public function.” Melvin, 2017 WL 3841689, at * 3 (collecting

cases).

However, private entities may be deemed to act under

color of state law when their activities are “attributable to the

state.” Vaughn, 2015 WL 5671902, *4. The Second Circuit

instructs that one of three tests (the “compulsion test”, the

“public function test”, and the “joint action test”) must be met

to find state action by a private entity. Hollander v. Copacabana

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Nightclub, 624 F.3d 30, 34 (2d Cir. 2010). There is no allegation

that the state controlled or ran Eastern Long Island Hospital, or

that the State delegated any public entity to do it. Nor does

Plaintiff sufficiently allege that Game was a willful participant

in joint activity with a state actor, Zrake. Plaintiff alleges,

in conclusory fashion, that Zrake “manipulated” and “induc[ed]”

Game to create a false discharge plan so as to provide a basis for

Zrake to arrest Plaintiff for a parole violation. Vague and

conclusory allegations that a defendant has engaged in a conspiracy

to violate a plaintiff’s constitutional rights must be dismissed.

See Ciambriello, 292 F.3d 307, 325 (2d Cir. 2002) (dismissing

conspiracy allegations where they were found “strictly

conclusory”); see also Walker v. Jastremski, 430 F.3d 560, 564 n.5

(2d Cir. 2005) (“[C]onclusory or general allegations are

insufficient to state a claim for conspiracy under § 1983.” (citing

Ciambriello)); Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983)

(“A complaint containing only conclusory, vague, or general

allegations of conspiracy to deprive a person of constitutional

rights cannot withstand a motion to dismiss.”); Green v. Bartek,

05–CV–1851, 2007 WL 4322780, at *3 (D. Conn. Dec. 7, 2007) (“The

Second Circuit has consistently held that a claim of conspiracy to

violate civil rights requires more than general allegations.”).

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Accordingly, because Plaintiff has not sufficiently alleged state

action, Plaintiff’s Section 1983 claim against Game is not

plausible and is thus DISMISSED pursuant to 28 U.S.C. §§ 1915(e)

(2)(B)(i)-(ii), 1915A(b)(1).

B. Plaintiff’s Claims against Zrake are barred by the

Eleventh Amendment

The Eleventh Amendment bars suits brought by a state’s

own citizens in federal court. Woods v. Rondout Valley Cent. Sch.

Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Alden

v. Maine, 527 U.S. 706, 712, 119 S. Ct. 2240, 2246, 144 L. Ed. 2d

636 (1999)). As an agency or arm of the State of New York, the

New York State Board of Parole, Division of Parole, is immune from

suit under the Eleventh Amendment. See Kentucky v. Graham, 473

U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985);

Stone v. N.Y. City Dept. of Homeless Servs., 159 F. App’x 324 (2d

Cir. 2005) (affirming dismissal of Section 1983 claim against the

New York State Division of Parole as barred by the Eleventh

Amendment). The Supreme Court instructs that the Eleventh

Amendment gives a state government immunity from suit, not just

from liability. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, 506 U.S. 139, 144, 113 S. Ct. 684, 687, 121 L. Ed. 2d 605

(1993) (citation omitted).

Similarly, Section 1983 claims against state employees

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sued in their official capacities are also barred by the Eleventh

Amendment. Graham, 473 U.S. at 165–67, and n.14, (suit for damages

against state officer in official capacity is barred by the

Eleventh Amendment); Darcy v. Lippman, 356 F. App’x 434, 436–37

(2d Cir. 2009) (“Eleventh Amendment likewise bars [plaintiff] from

pursuing a claim for damages against the individual defendants in

their official capacities.”).

Here, Plaintiff’s Amended Complaint does not include a

demand for relief. However, the original Complaint sought

exclusively monetary damages. Given the absence of a claim for

any relief in the Amended Complaint, much less for any injunctive

relief, together with the fact that Plaintiff had sought only

monetary damages in the original Complaints, Plaintiff’s claims

against Zrake sued in his official capacity are barred by the

Eleventh Amendment to the Constitution, Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 268, 117 S. Ct. 2028, 2033, 138 L.

Ed. 2d 438 (1997), and is thus DISMISSED pursuant to 28 U.S.C.

§§1915(e)(2)(B)(i)-(iii), 1915A(b).2

2 The Court notes that the Plaintiff’s Section 1983 claims

against the Zrake in his official capacity must be dismissed for

the additional reason that “[n]either a state nor one of its

agencies nor an official of that agency sued in his or her

official capacity is a ‘person’ under § 1983.” Spencer v. Doe,

139 F.3d 107, 111 (2d Cir. 1998); see also Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L.

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CONCLUSION

For the reasons set forth above, the Amended Complaint

is sua sponte DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-

(iii), 1915A(b).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is DENIED for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

The Clerk of the Court is directed to mail a copy of

this Order to the pro se Plaintiff and to mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: January 9 , 2020

Central Islip, New York

Ed. 2d 45 (1989).

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