Moncion v. The City of New York NYPD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

BETTY MONCION,

Plaintiff,

20-CV-8974 (LTS)

-against-

ORDER OF DISMISSAL

THE CITY OF NEW YORK NYPD, et al., AND TRANSFER

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that, in

2019: (1) officers from the New York City Police Department (NYPD) asked her to leave the

S91 bus in Staten Island, and (2) a security guard discriminated against her in the South Ferry

Terminal in Manhattan. By order dated April 6, 2021, the Court granted Plaintiff’s request to

proceed without prepayment of fees, that is, in forma pauperis (IFP).1

For the reasons set forth below, the Court dismisses the claims that arose at the South

Ferry Terminal for failure to state a claim and transfers to the United States District Court for the

Eastern District of New York the claims that arose on the S91 bus.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or any portion of the complaint, that is

frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see

1 On February 11, 2021, Judge Colleen McMahon, to whom this action was then

assigned, dismissed the complaint because Plaintiff had not submitted an IFP application. (ECF

4.) After the action was closed, Plaintiff submitted her IFP application. (ECF 6.) Judge

McMahon then directed the Clerk of Court to reopen the matter and granted Plaintiff’s IFP

application.

Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also

dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P.

12(h)(3).

While the law mandates dismissal on any of these grounds, the Court is obliged to

construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in

original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –

to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the

pleader is entitled to relief.

The Supreme Court has held that, under Rule 8, a complaint must include enough facts to

state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the

Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing

the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals

of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550

U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court

must determine whether those facts make it plausible – not merely possible – that the pleader is

entitled to relief. Id.

BACKGROUND

Plaintiff brings this complaint against the City of New York and the NYPD. She alleges

that Defendants violated her rights while she was using public transportation in New York City

and Staten Island.

The following facts are taken from the complaint: On February 12, 2019, Plaintiff

boarded the S91 bus in Staten Island when she was unable to find her MetroCard. She informed

the bus driver that she “needed to look for [her] metro card to pay and he nodded.” (ECF 1, at 6.)

After Plaintiff found her card, she paid her fare. But after paying, “a person who gives

summons” ordered Plaintiff off the bus “because [she] didn’t pay.” (Id.) Plaintiff countered that

she had paid and offered proof from her 30-day MetroCard. The woman “asked for [Plaintiff’s]

ID for the ticket she was writing up and [Plaintiff] refused to give it to her because [she had

done] nothing wrong.” (Id.) “[T]hen they called the police from the nearest precinct.” (Id.) The

Court will refer to these events and the claims that arise from them as “Staten Island claims.”

On February 17, 2019, Plaintiff “entered the south ferry Manhattan terminal” when a

“security guard stop[ped] [her] to check [her] bag.” (ECF 1, at 5.) Plaintiff “did not have a

problem with it but [she] explained to him that [she took] this ferry every day and no one has

ever stopped [her] to check [her] bag.” (Id.) The guard then “called two police officers, who

“told” Plaintiff to allow the guard to check her bag, which she did. (Id.) After the guard checked

her bag, the officers asked Plaintiff “to leave the terminal or else [she] would be arrested for

trespassing.” (Id.) The Court will refer to these events and the claims that arise from them as

“Manhattan claims.”

Plaintiff alleges that Defendants “put [her] life in danger and used discrimination that

made [her] suffer.” (Id. at 8.) She seeks money damages.

Plaintiff filed a prior complaint in which she raised the Manhattan claims. See Moncion v.

New York City, ECF 1:20-CV-2346, 2 (S.D.N.Y. May 12, 2021). On April 22, 2020, Judge Louis

L. Stanton of this Court granted Plaintiff leave to file an amended complaint to state facts in

support of her claims under § 1983. After Plaintiff failed to file an amended complaint, Judge

Stanton dismissed the complaint for failure to state a claim. See id. (Order dated August 13,

2020, ECF 6).

Eight days later, on August 21, 2021, Plaintiff filed an amended complaint, alleging that

the security guard used “racism words” when the guard informed her that she should leave the

South Ferry Terminal. See id. (ECF 9). On September 1, 2020, Judge Stanton issued an order in

which he directed that the action be reopened; in addition, he construed the amended complaint

as asserting claims under Title II of the Civil Rights Act of 1964, and granted Plaintiff leave to

file a second amended complaint. See id. (ECF 10). Plaintiff did not file an amended pleading.

On May 12, 2021, Judge Stanton dismissed the amended complaint for failure to state a claim.

See id. (ECF 11).

DISCUSSION

A. Title II of the Civil Rights Act

Title II of the Civil Rights Act of 1964 prohibits places of public accommodation that

affect interstate commerce from discriminating based on an individual’s race, color, religion, or

national origin. The statute provides, in relevant part, that:

[a]ll persons shall be entitled to the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, and accommodations, as defined in this

section, without discrimination or segregation on the ground of race, color,

religion, or national origin.

42 U.S.C. § 2000a(a).

In the September 1, 2020 order in Moncion v. New York City, Judge Stanton granted

Plaintiff leave to file an amended complaint under Title II because she had alleged “that security

guards at the [South] Ferry Terminal searched her bag, used “racism” words against her, and told

her that she could not board the ferry and had to leave the terminal.” Id. (ECF 10, at 4). Judge

Stanton noted that because Plaintiff had not described her identity or the words used by the

security guard, Plaintiff had failed to state a claim that the defendants had violated Title II, and

granted Plaintiff leave to file a second amended complaint. As noted above, Plaintiff did not do

so.

The Court concludes that Plaintiff has failed to state a claim under Title II because she

does not allege any facts suggesting that any defendant discriminated against her based on her

race, color, national origin, or religion. As Judge Stanton already provided Plaintiff the

opportunity to amend her complaint to state facts in support of her claim under Title II, and

Plaintiff declined to do so, the Court declines to grant Plaintiff further leave to amend. See

Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (holding that leave to amend may

be denied if the plaintiff has already been given an opportunity to amend but has failed to cure a

complaint’s deficiencies).

B. Venue

Under the general venue provision, a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents

of the State in which the district is located; (2) a judicial district in which a

substantial part of the events or omissions giving rise to the claim

occurred . . . ; or (3) if there is no district in which an action may otherwise be

brought as provided in this section, any judicial district in which any defendant is

subject to the court’s personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

For venue purposes, a “natural person” resides in the district where the person is

domiciled, and an “entity with the capacity to sue and be sued,” if a defendant, resides in any

judicial district where it is subject to personal jurisdiction with respect to the civil action in

question. See 28 U.S.C. § 1391(c)(1), (2). Plaintiff filed this complaint regarding events

occurring in Staten Island, in which she names the City of New York. As the City of New York

is subject to personal jurisdiction in this district, venue is proper here under § 1391(b)(1).

Even though venue is proper here, however, the Court may transfer claims “[f]or the

convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a).

“District courts have broad discretion in making determinations of convenience under Section

1404(a) and notions of convenience and fairness are considered on a case-by-case basis.” D.H.

Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006). Moreover, courts may transfer cases

on their own initiative. See Bank of Am., N.A. v. Wilmington Trust FSB, 943 F. Supp. 2d 417,

426-427 (S.D.N.Y. 2013) (“Courts have an independent institutional concern to see to it that the

burdens of litigation that is unrelated to the forum that a party chooses are not imposed

unreasonably on jurors and judges who have enough to do in determining cases that are

appropriately before them. The power of district courts to transfer cases under Section 1404(a)

sua sponte therefore is well established.” (quoting Cento v. Pearl Arts & Craft Supply Inc., No.

03-CV-2424, 2003 WL 1960595, at *1 (S.D.N.Y. Apr. 24, 2003))); see also Lead Indus. Ass’n.

Inc. v. OSHA., 610 F.2d 70, 79 (2d Cir. 1979) (noting that “broad language of 28 U.S.C.

§ 1404(a) would seem to permit a court to order transfer sua sponte”).

In determining whether transfer is appropriate, courts consider the following factors:

(1) the convenience of witnesses; (2) the convenience of the parties; (3) the locus of operative

facts; (4) the availability of process to compel the attendance of the unwilling witnesses; (5) the

location of relevant documents and the relative ease of access to sources of proof; (6) the relative

means of the parties; (7) the forum’s familiarity with the governing law; (8) the weight accorded

to the plaintiff’s choice of forum; (9) trial efficiency; and (10) the interest of justice, based on the

totality of circumstances. Keitt v. N.Y. City, 882 F. Supp. 2d 412, 459-60 (S.D.N.Y. 2011); see

also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010)

(setting forth similar factors). A plaintiff’s choice of forum is accorded less deference where

plaintiff does not reside in the chosen forum and the operative events did not occur there. See

Iragorri v. United Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).

Under § 1404(a), transfer appears to be appropriate in this case. The underlying events

occurred in Staten Island, and the individual who issued Plaintiff a summons is employed there.

Staten Island is located in Richmond County, which falls within the Eastern District of New

York. See 28 U.S.C. § 112(a). Venue is therefore proper in the Eastern District of New York. See

28 U.S.C. § 1391(b). Based on the totality of the circumstances, the Court concludes that it is in

the interest of justice to transfer Plaintiff’s Staten Island claims to the United States District

Court for the Eastern District of New York. See 28 U.S.C. § 1404(a).

CONCLUSION

This Court dismisses the Manhattan claims for failure to state a claim, see 28 U.S.C.

§ 1915(e)(2)(B)(ii), and directs the Clerk of Court to transfer the Staten Island claims to the

United States District Court for the Eastern District of New York.

The Court further directs the Clerk of Court to mail a copy of this order to Plaintiff and

note service on the docket. No summonses will issue from this Court. This order closes this

action.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would

not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: June 1, 2021

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge