DuBois v. Rosner

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

SERGE DUBOIS,

Plaintiff,

v. MEMORANDUM AND ORDER

BEDFORD-FLATBUSH CHIROPRACTIC, P.C., 18-CV-04416 (LDH) (LB)

DR. JEFFREY S. ROSNER & DR. ALAN S.

ROSEN,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiff Serge DuBois, proceeding pro se, asserts claims pursuant to 42 U.S.C. §§ 1981

and 1983, and New York state law, against Defendants Bedford-Flatbush Chiropractic, P.C., Dr.

Jeffrey S. Rosner, and Dr. Alan S. Rosen for fraud, racial discrimination, civil rights violations,

and sexual harassment.1 Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure to dismiss the amended complaint in its entirety for failure to state a claim.

BACKGROUND2

Plaintiff is a Black Haitian. (Aff. Supp. Am. Compl. (“Aff.”) ¶ 8(a), ECF No. 22.3) On

November 13, 2017, Plaintiff sustained an on-the-job injury while working for the United States

Postal Service (“USPS”). (Id. ¶ 3.) On November 28, 2017, he filed a claim for workers’

compensation under the Federal Employees’ Compensation Act (“FECA”). (Am. Compl., Ex. B

1 On August 29, 2019, the Court dismissed Plaintiff’s 42 U.S.C. § 1985(3), 18 U.S.C. § 1113, and Medical Device

Regulation Act claims against Defendants Bedford-Flatbush Chiropractic, Rosner, and Rosen. (Mem & Order, ECF

No. 21.) The Court ordered Plaintiff to show cause as to why his §§ 1981 and 1983 claims should not be dismissed

or, alternatively, to file an amended complaint within 30 days. (Id.) Plaintiff timely filed an amended complaint.

(Am. Compl., ECF No. 22.)

2 The following facts are taken from the complaint and attached exhibits, and are assumed to be true for the purposes

of this memorandum and order. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (noting

that on a motion to dismiss, a court’s review is generally “limited to the facts as asserted within the four corners of

the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the

complaint by reference”).

3 Plaintiff’s affidavit in support of the amended complaint begins at page eight of the pagination assigned by the

ECF system.

at 37.4) Bedford-Flatbush Chiropractic contracted with two government agencies—the New

York Department of Labor and the Office of Workers Compensation Programs (“OWCP”)—to

provide medical care and treatment to employees of USPS who are injured on the job, as

required by FECA. (Aff. ¶ 1.) Rosner and Rosen are business partners at Bedford-Flatbush

Chiropractic and are white. (Id. ¶¶ 4, 8(c).)

Between January and April 2018, Plaintiff sought treatment for his injury from Rosner at

Bedford-Flatbush Chiropractic. (Id. ¶¶ 4, 7(b), 7(d); Compl., Ex. C at 51.) According to

Plaintiff, Rosner and Rosen deliberately misrepresented and omitted certain aspects of Plaintiff’s

medical condition in Plaintiff’s medical reports to OWCP so that Plaintiff’s worker’s

compensation claims would be denied. (Aff. ¶ 5.) Rosner intentionally never referred Plaintiff

to a lawyer with respect to his worker’s compensation claim. (Id. ¶ 7(c).) Furthermore, Rosner

deliberately withheld medications and medical supplies from Plaintiff. (Id. ¶ 7(d).) According

to Plaintiff, Rosner and Rosen, “racially harassed and discriminated [against Plaintiff]

intentionally . . . so that he would not receive the benefits that he is entitled to, because he is

Black and Haitian.” (Id. ¶ 4.)

Plaintiff further alleges that Defendants acted “under the color of state law,” as evidenced

by “the degree and the strange nature of the misconduct and convincing facts.” (Id. ¶ 9(a).)

Plaintiff alleges Defendants are agents for the OWCP because it exercises “coercive power over

the Defendants” and Defendants “have been operating as a willful participant in a Joint activity”

with state agencies and actors. (Id. ¶ 9(b).) He further claims that the Defendants demonstrated

a “joint activity, plan and prearrangement” with state agencies, which was the “common goal[] to

violate the Plaintiff’s constitutional rights.” (Id. ¶ 9(c).)

4 Pagination of exhibits attached to the complaint refers to the pagination assigned by the ECF system.

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible when the alleged facts allow the court to draw a

“reasonable inference” of defendants’ liability for the alleged misconduct. Id. While this

standard requires more than a “sheer possibility” of a defendants’ liability, id., “[i]t is not the

Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss.

Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the

Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,

it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.

(citations omitted).

Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings “must be

construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.

Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006)). A pro se complaint, “however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp,

521 F.3d 202, 213–214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam)). This rule is “particularly so when the pro se plaintiff alleges that [his] civil rights have

been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citing

McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Still, “even pro se plaintiffs

asserting civil right[s] claims cannot withstand a motion to dismiss unless their pleadings contain

factual allegations sufficient to raise a ‘right to relief above the speculative level.’” Jackson v.

NYS Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at

555).

DISCUSSION

I. Section 1981 Claim

Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,

and to no other.

42 U.S.C. § 1981(a). The statute applies not only to government conduct but also “prohibits

racial discrimination in the making and enforcement of private contracts.” Runyon v. McCrary,

427 U.S. 160, 168 (1976). As previously set forth in the Court’s August 29, 2019 Memorandum

and Order, to maintain a § 1981 claim, a plaintiff must allege “(1) [he is] a member of a racial

minority; (2) an intent to discriminate on the basis of race by the defendant[s]; and (3) the

discrimination concerned one or more of the activities enumerated in the statute (i.e., make and

enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette

Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Plaintiff alleges that he is a Black

Haitian, and thus satisfies the first prong of a § 1981 claim. (Aff. ¶ 8(a).) However, even if the

Court were to assume that making a medical claim constitutes a contract with Defendants under

the third prong, Plaintiff’s claim fails as he has not sufficiently alleged defendants’ intent to

discriminate on the basis of his race.

“Essential to an action under Section 1981 are allegations that the defendants’ acts were

purposefully discriminatory and racially motivated.” Albert v. Carovano, 851 F.2d 561, 571 (2d

Cir. 1988) (citations omitted); see also Mian, 7 F.3d at 1088 (“We emphasize that an essential

element to [a § 1981 claim] is a requirement that the alleged discrimination took place because of

the individual's race.”). Conclusory allegations are insufficient to survive dismissal. Id. (“It is

well established that mere conclusory allegations are insufficient to establish a cause of action

for a violation of civil rights.” (internal citation omitted)).

Plaintiff alleges that it was “Defendants’ obligation to provide accurate medical reports”

to the OWCP in support of Plaintiff’s claims for workers’ compensation. (Aff. ¶ 8(c).)

However, according to Plaintiff, Rosner “described [Plaintiff’s] injuries with irrelevant and

inaccurate information, and omitted several facts concerning [his] medical conditions, without

mentioning the fact that I had my surgery.” (Id. ¶ 7(c).) Furthermore, Rosner intentionally never

referred Plaintiff to a lawyer with respect to his worker’s compensation claim. (Id.) Lastly,

Rosner deliberately withheld medications and medical supplies from Plaintiff, and told Plaintiff

that the delay as the result of Rosner waiting for approval from the Workers’ Compensation

Board. (Id. ¶ 7(d).) Plaintiff makes the conclusory assertion that Rosner and Rosen, “racially

harassed and discriminated [against Plaintiff] intentionally . . . so that he would not receive the

benefits that he is entitled to, because he is Black and Haitian.” (Id. ¶ 4.) Even drawing all

inferences in Plaintiff’s favor, Plaintiff has failed to allege that Defendants’ conduct plausibly

occurred because of his race. See Mian, 7 F.3d at 1088 (finding that the plaintiff’s claims “that

defendants used race based discrimination, fraud, deception, professional misconduct and

intentional conspiracy to deprive him of the equal protection of the law” in violation of 42

U.S.C. § 1981 were too conclusory to support his claim that “he was discriminated against

because of his race” (internal quotations omitted)); Albert, 851 F.2d at 572 (“The naked

allegation that appellees ‘selectively enforc[ed] the College rules ... against plaintiffs ... because

they are black [or] Latin’ is too conclusory to survive a motion to dismiss.”). Accordingly,

Plaintiff’s § 1981 claims are dismissed.

II. Section 1983 Claim

To support a § 1983 claim, the “the 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)). A private entity acts under color of

state law when:

“(1) the entity acts pursuant to the coercive power of the state or is controlled by

the state (‘the compulsion test’); (2) when the state provides significant

encouragement to the entity, the entity is a willful participant in joint activity with

the state, or the entity's functions are entwined with state policies (‘the joint action

test’ or ‘close nexus test’); or (3) when the entity has been delegated a public

function by the state, (‘the public function test’).”

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 255-57 (2d Cir. 2008) (per

curiam) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296

(2001)). Merely conclusory allegations do not suffice. Ciambriello v. Cty. of Nassau, 292 F.3d

307, 324 (2d Cir. 2002).

In its August 29, 2019 Memorandum and Order, the Court found Plaintiff’s § 1983 claim

failed because he did not plead facts to suggest that: (1) “the state exercised coercive power over

the Defendants”; (2) there existed a conspiracy or “prearrangement between Defendant’s and the

state”; or (3) “Defendants perform a public function.” (Mem. & Order 8-9.) Rather than plead

any additional facts, Plaintiff merely adopted the Court’s legal standards as facts. Plaintiff

alleges that “Defendants did act under color of state law, in which the degree and the strange

nature of the misconduct and convincing facts demonstrat[e].” (Aff. ¶ 9(a).) Plaintiff alleges

Defendants are agents for the OWCP because it exercises “coercive power over the Defendants”

and Defendants “have been operating as a willful participant in a Joint activity” with state

agencies and actors. (Id. ¶ 9(b).) He further claims that the Defendants demonstrated a “joint

activity, plan and prearrangement” with state agencies which was the “common goal[] to violate

the Plaintiff’s constitutional rights.” (Id. ¶ 9(c).)

As evidence of a nexus between Defendants and state actors, Plaintiff refers to various

exhibits he attached to his complaint. (Id. ¶ 5.) These exhibits are largely irrelevant to his

§ 1983 claims and includes, inter alia, an affidavit written by Plaintiff’s wife that states that her

affidavit is made “in support of my husband’s Claim against the Defendants, with regard to the

discriminatory, unacceptable and fraudulated [sic] manner that they conspired to handle my

husband[’s] Worker’s Compensation Claim, by intentionally provid[ing] false and misleading

medical statements and withholding the relevant information, including depriving him of Civil . .

. Rights in order to prevent him from receiving medical benefits he is entitled to, obviously

because he is a Black Hattian.” (Compl., Ex. H at 87.) Like Plaintiff’s complaint and supporting

affidavit, his wife’s affidavit merely restates the legal standard for establishing a § 1983 claim

against a private actor.

Another exhibit includes a letter from Dr. Frank Folk, who treated Plaintiff subsequent to

Rosner, addressed to an attorney, which states, “We referred [Plaintiff] to you around July 24,

2018 to continue with his claim, based upon the evidence an information that he has provided to

us, which confirmed that his Workers Compensation Case was intentionally mishandled” by

Rosen and Rosner. (Compl., Ex. E at 60.) Even if it were true that Defendants mishandled

Plaintiff’s case, such an allegation is not sufficient to support a claim that Defendants were

acting under the color of state law. As Plaintiff has only pleaded “threadbare recitals of a cause

of action’s elements,” Iqbal, 556 U.S. at 678, his § 1983 claims are dismissed.

Having dismissed all of the federal claims in this action, the Court declines to exercise

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) over Plaintiff’s state law claim for

fraud and sexual harassment. See Brzak v. United Nations, 597 F.3d 107, 113–14 (2d Cir. 2010)

(“We have said that if a plaintiff’s federal claims are dismissed before trial, the state claims

should be dismissed as well.”); see also First Capital Mgmt., Inc. v. Satinwood, Inc., 385 F.3d

159, 182 (2d Cir. 2004) (“The exercise of supplemental jurisdiction is left to the discretion of the

district court[.]”). These claims are therefore dismissed without prejudice for lack of subject-

matter jurisdiction.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss the amended complaint is

GRANTED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

September 11, 2020 LASHANN DEARCY HALL

United States District Judge