Dyce v. Macy's Inc. and Federated Department Stores Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RENEE DYCE,

Plaintiff, MEMORANDUM AND ORDER

23-CV-8730 (PKC) (SJB)

-against-

FRANK DOE, Kings County Clerk; MIRMAN,

MARKOVITS & LANDAU, PC.; MACY’S

INC.,

Defendants.

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PAMELA K. CHEN, United States District Judge:

By Order dated December 7, 2023, the Court granted Plaintiff Renee Dyce’s (“Plaintiff”)

request to proceed in forma pauperis (“IFP”) but dismissed her original Complaint without

prejudice for lack of subject matter jurisdiction. Plaintiff was granted leave to amend her

complaint to assert a basis for the exercise of the Court’s jurisdiction. Plaintiff filed an Amended

Complaint on February 5, 2024, in which she asserts federal question jurisdiction pursuant to 28

U.S.C. § 1331 and specifically notes 42 U.S.C. § 1983, 18 U.S.C. § 242, and Title II and Title III

of the Americans with Disabilities Act (“ADA”). (Am. Compl., Dkt. 7 (hereinafter “Dkt. 7”), at

ECF1 4.) For the reasons stated below, Plaintiff’s Amended Complaint is dismissed, and this

matter is terminated.

BACKGROUND2

Plaintiff asserts that on November 27, 2020, she was injured at a Macy’s department store

in Brooklyn, New York. (Dkt. 7, at ECF 7.) Thereafter, she contacted the firm of Mirman,

1 Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing

system and not the document’s internal pagination.

2 The following allegations are taken from Plaintiff’s Amended Complaint and

considered to be true for purposes of this Order.

Markovitz & Landau, PC (the “Law Firm”) about filing an action against Macy’s. (Id. at ECF 7–

8.) On or about March 3, 2021, Plaintiff received a letter from the Law Firm stating, in part, that

there was a lack of medical support for her claim for damages and, therefore, the firm closed her

case. (Id. at ECF 8.) Plaintiff went to the Kings County Clerk’s Office to seek assistance in

filing an action. (Id. at ECF 6.) Plaintiff asserts that “Frank Doe,” an employee in the clerk’s

office, provided instructions and forms to initiate a lawsuit but refused to help her complete said

paperwork. (Id.) Plaintiff appears to assert that as a disabled person, she should have received

assistance in completing the paperwork. (Id. at ECF 7.) Plaintiff seeks monetary and other

relief. (Id. at ECF 12.)

LEGAL STANDARD

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 is plausible “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained

in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal,

556 U.S. at 678. In reviewing a pro se complaint, the court must be mindful that the plaintiff’s

pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); see also Harris v. Mills, 572 F.3d 66,

72 (2d Cir. 2009) (noting that even after Twombly, courts “remain obligated to construe a pro se

complaint liberally”).

Nonetheless, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an IFP action

where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune

from such relief.” 28 U.S.C. § 1915(e)(2)(B). “An action is frivolous when either: (1) the

factual contentions are clearly baseless, such as when allegations are the product of delusion or

fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v.

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotation marks omitted)

(quoting Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)).

DISCUSSION

In her Amended Complaint, Plaintiff asserts that the Court has federal question

jurisdiction over her claims pursuant to 28 U.S.C. § 1331 (“Section 1331”).3 (See Am. Compl.,

at ECF 4.) A plaintiff properly invokes jurisdiction under Section 1331 “when she pleads a

colorable claim ‘arising under’ the Constitution or laws of the United States.” Arbaugh v. Y&H

Corp., 546 U.S. 500, 513 (2006) (quoting Bell v. Hood, 327 U.S. 678, 681–85 (1946)). A claim

“may be dismissed for want of subject-matter jurisdiction [because] it is not colorable, i.e., if it is

‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial

and frivolous.’” Id. at 513 n.10 (quoting Bell, 327 U.S. at 681–85).

I. Plaintiff’s Claims Under 18 U.S.C. § 242

To the extent that Plaintiff seeks to invoke the Court’s jurisdiction by bringing her claims

under 18 U.S.C. § 242 (“Section 242”), a criminal civil rights statute, she may not do so. Section

242 does not provide a private right of action. See, e.g., Sheehy v. Brown, 335 F. App’x 102, 104

(2d Cir. 2009) (summary order) (“[C]laims based on the violation of federal criminal statutes,

such as 18 U.S.C. §§ 241–242 . . . are not cognizable, as federal criminal statutes do not provide

3 Plaintiff’s Amended Complaint is a form complaint, in which she checked off the box

for “Federal question,” instead of the box for “Diversity of citizenship,” as the basis for

jurisdiction. (See Dkt. 7, at ECF 4.)

private causes of action.”). Accordingly, Plaintiff’s claims asserted under Section 242 are

dismissed as frivolous.

II. Plaintiff’s Claims Under 42 U.S.C. § 1983

42 U.S.C. § 1983 (“Section 1983”) provides, in relevant part, 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 States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party

injured[.]” To state a claim under Section 1983, a plaintiff must allege two essential elements:

“(1) that the defendants deprived [her] of a right ‘secured by the Constitution or laws of the

United States’; and (2) that they did so ‘under color of state law.’” Giordano v. City of New

York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

49–50 (1999)).

To the extent that Plaintiff seeks to allege that Macy’s4 and the Law Firm violated her

constitutional rights, her claims fail. “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.’” Ciambriello

v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). “[P]rivate conduct, no matter how

discriminatory or wrongful,” is generally beyond the reach of Section 1983. Am. Mfrs. Mut. Ins.

Co., 526 U.S. at 50 (internal quotation marks omitted) (quoting Blum v. Yaretsky, 457 U.S. 991,

1002 (1982)). Here, Macy’s and the Law Firm are private entities, and Plaintiff has failed to

4 To the extent that Plaintiff seeks to hold Macy’s liable for negligence, as explained in

the Court’s December 7, 2023 Order, a claim for negligence arises under state law, not federal

law. See Bangs v. Warden of Suffolk Cnty. Jail, No. 23-CV-2619 (JMA) (JMW), 2023 WL

3931697, at *4 (E.D.N.Y. June 9, 2023) (“Plaintiff’s claim is a run-of-the-mill slip-and-fall

claim, which, at most, would give rise to a negligence claim under state law.”).

plead a plausible claim for state action. See, e.g., Iosilevich v. Walmart Inc., No. 22-CV-4757

(VB), 2024 WL 168283, at *7 (S.D.N.Y. Jan. 12, 2024) (dismissing plaintiff’s Section 1983

claims against Walmart because it did not act under color of state law); Harrison v. New York, 95

F. Supp. 3d 293, 328 (E.D.N.Y. 2015) (stating that law firms “do not act under color of state law

and are not state actors for purposes of Section 1983” (internal quotation marks omitted)

(quoting Manko v. Steinhardt, No. 11-CV-5430, 2012 WL 213715 (KAM) (LB), at *4 (E.D.N.Y.

Jan. 24, 2012))). Accordingly, Plaintiff’s Section 1983 claims against Macy’s and the Law Firm

are dismissed.

To the extent that Plaintiff seeks to hold the state court clerk Frank Doe liable for

violating her constitutional rights by allegedly failing to complete the paperwork for her on the

court-supplied forms, her Section 1983 claim still fails because Frank Doe has absolute

immunity. See, e.g., McKnight v. Middleton, 699 F. Supp. 2d 507, 525 (E.D.N.Y. 2010) (holding

that absolute immunity extends to court clerks who perform tasks “which are judicial in nature

and an integral part of the judicial process”); id. at 526 (finding that absolute judicial immunity

extends to “[the] Clerk’s Office activities of filing and docketing legal documents”). Thus,

Plaintiff’s claim against Frank Doe is dismissed.

III. Plaintiff’s Claims Under Title II and Title III of the ADA

Plaintiff asserts that “Title II and Title III of the ADA are at issue in this case.” (Dkt. 7,

at ECF 4.) However, she pleads no plausible facts in support of her claim. “Title II of [the

ADA] proscribes discrimination against the disabled in access to public services.” Powell v.

Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. 2004). “Title III of the ADA proscribes

discrimination against the disabled in public accommodations.” Id. at 85. To establish a

violation of the ADA, Plaintiff must demonstrate that “(1) [s]he is a qualified individual with a

disability; (2) the defendant is subject to [the ADA]; and (3) [s]he was denied the opportunity to

participate in or benefit from the defendant’s services, programs, or activities, or was otherwise

discriminated against by the defendant because of [her] disability.” Disabled in Action v. Bd. of

Elections, 752 F.3d 189, 196–97 (2d Cir. 2014) (footnote omitted). Here, Plaintiff’s Amended

Complaint is devoid of any factual allegations plausibly suggesting that Plaintiff is a qualified

individual with a disability, that she was denied the opportunity to participate in or benefit from

Defendants’ services, or that she was discriminated against by Defendants based on a disability.

Thus, Plaintiff’s claims under Title II and Title III of the ADA are dismissed.

CONCLUSION

Accordingly, Plaintiff’s Amended Complaint, filed IFP, is dismissed. See 28 U.S.C.

§ 1915(e)(2)(B). The Clerk of Court is therefore respectfully directed to enter judgment and

close this case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would

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

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

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: April 4, 2024

Brooklyn, New York