# Burgdorf v. Betsy Ross Nursing and Rehabilitation Center Inc.

> District Court, N.D. New York · January 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10315476

## Case

- **Court:** District Court, N.D. New York
- **Decided:** January 5, 2023
- **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/10315476

## How later opinions describe it (automated extraction)

- finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee

## Opinion text

NORTHERN DISTRICT OF NEW YORK
JOSEPH D. BURGDORF,
Plaintiff,
v. 6:22-CV-987
(DNH/ATB)
BETSY ROSS NURSING AND REHABILITATION
CENTER INC., et al.,
Defendants.
JOSEPH D. BURGDORF, Plaintiff, pro se
ANDREW T. BAXTER
United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent to the court for review a pro se complaint filed by plaintiff
Joseph D. Burgdorf, in which he alleges claims pursuant to the Racketeer Influenced
and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., as well as
additional criminal and civil causes of action alleged under state and federal law. (Dkt.
No. 1) (“Compl.”). Plaintiff has moved to proceed in forma pauperis (“IFP”). (Dkt. No.

2).
I. In Forma Pauperis (“IFP”) Application
A review of plaintiff’s IFP application shows that he declares he is unable to pay
the filing fee. (Dkt. No. 2). After reviewing his application, this court finds that
plaintiff is financially eligible for IFP status.
In addition to determining whether plaintiff meets the financial criteria to

proceed IFP, the court must also consider the sufficiency of the allegations set forth in
the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss
(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)(i)-(iii).
In determining whether an action is frivolous, the court must consider whether
the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of
court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S.

at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has
a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been
served and has had an opportunity to respond, the court still has a responsibility to
determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)

(finding that a district court may dismiss a frivolous complaint sua sponte even when
plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain
sufficient factual matter, accepted as true, to state a claim 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)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555). The court will now turn to a consideration of the plaintiff’s complaint
under the above standards.
Plaintiff alleges that in September 2019, he was discharged from an unidentified

hospital “in sound physical and mental condition,” after receiving treatment for acute
pancreatitis. (Compl. at CM/ECF p. 7). At his doctor’s suggestion, plaintiff agreed to
undergo further, subsequent care at the defendant facility, Betsy Ross Nursing and
Rehabilitation Center (“BRNRC”), for “three or four days at most.” (Id.).
According to the plaintiff’s complaint, defendants Tracy Lynn Jayne, a

physician’s assistant (“PA”), and Yvette Hulett, a social worker, were employed by
BRNRC in September 2019. (Id.). PA Jayne was also, dually employed by defendant
Amidon Medical Group, under whose “direct supervision” she wrote plaintiff’s
prescriptions at BRNRC. (Id.).
Plaintiff alleges that PA Jayne and Ms. Hulett “conspired to illegally detain
plaintiff” at BRNRC. (Id.). Specifically, plaintiff alleges that these defendants falsely

reported his condition was deteriorating in order to extend his admission to BRNRC
from seven to 25 days, ultimately providing a “significant amount of additional revenue
for the for-profit facility.” (Id.). Plaintiff states that this resulted in the facility
“fraudulently charg[ing]” his insurance company, and extorting $1,265 from plaintiff
for the amount of time he was “unlawfully detained thus imprisoned.” (Id. at CM/ECF

p. 8). Plaintiff describes several occasions on which he attempted to leave BRNRC, but
was physically prevented from doing so. (Id. at CM/ECF pp. 10-13). He alleges that
NP Jayne kept him at BRNRC against his will based on her claim that plaintiff required
a “mental evaluation” before discharge, which plaintiff “was not having any of.” (Id. at
Plaintiff further alleges that during his stay at BRNRC, his narcotic medication,

which appears to have been provided to him upon discharge from the hospital, was
“stolen by maintenance workers under [Ms.] Hulett’s and [PA] Jayne’s supervision.”
(Id.). Plaintiff claims that Ms. Hulett and PA Jayne further delayed his discharge from
BRNRC because “plaintiff threatened to call the police and file and report” with respect
to the missing narcotic medication. (Id.).

Plaintiff’s complaint next describes a separate incident that occurred in 2001 at
BRNRC, at which time plaintiff was also a patient at the facility. (Id. at CM/ECF p. 9).
Allegedly, plaintiff had similar issues obtaining his medication at that time. (Id.).
Plaintiff further alleges that, while a patient at BRNRC in 2001, he watched his
roommate choke to death in what he describes as a “wrongful death” incident. (Id. at
CM/ECF pp. 9-10). Plaintiff alleges that these incidents demonstrate a “pattern of lying

and coverups” at BRNRC. (Id. at CM/ECF p. 10).
On October 1, 2019, plaintiff was informed that transportation had been arranged
to take him to a “mental evaluation” scheduled by PA Jayne. (Id. at CM/ECF p. 14).
Plaintiff confronted PA Jayne as to “why he had been detained against his will[.]” (Id.).
PA Jayne responded that plaintiff appeared “unstable,” and it would not be safe for him

to leave the premises until he had undergone a “mental evaluation.” (Id.). After further
discussion, and plaintiff’s demand to meet with a supervisor, PA Jayne “told plaintiff
that he seemed to be much, much better than she remembered.” (Id. at CM/ECF p. 15).
She then “decided to release him.” (Id.). PA Jayne also allegedly admitted to plaintiff
17). Plaintiff’s medication was returned to him upon his discharge. (Id.).

Plaintiff is seeking damages in the amount of $74,000, along with court and
attorney fees. (Id. at CM/ECF p. 5; Dkt. No. 1-1). Plaintiff also asks this court to order
an investigation into the business practices of the named defendants, and “a referral” to
the New York State Office of Professional Medical Conduct. (Compl. at CM/ECF p.
7).

III. Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1961 et seq.
A. Legal Standards
The RICO statute provides a private right of action to any person injured in his or
her business or property by reason of a violation of Title 18 United States Code, section
1962. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006) (citing 18 U.S.C.
§ 1964(c)). In order to establish a civil RICO claim, the plaintiff must plead the
conduct of an enterprise through a pattern of racketeering activity that causes injury to

business or property as a result of the RICO violation. Lundy v. Catholic Health
Systems of Long Island, Inc., 711 F.3d 106, 119 (2d Cir. 2013) (quoting Anatian v.
Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999)). “A pattern of racketeering”
is defined as “at least two acts of racketeering activity, . . . the last of which occurred
within ten years . . . after the commission of a prior act of racketeering activity.” Spool

v. World Child Intern. Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (citing 18
U.S.C. § 1961(5)). The definition of “racketeering activity” includes, inter alia,
robbery, bribery, extortion, wire fraud, and mail fraud. See 18 U.S.C. § 1961(1). The
Lerner v. Fleet Bank, N.A., 459 F.3d at 283.

RICO provides only for injury to business or property. The statute does not
provide recovery for physical or emotional injuries. Kesick v. Ulloa, No. 1:10-CV-
1248, 2012 WL 2873364, at *9 (N.D.N.Y. July 12, 2012) (quoting Williams v. Dow
Chemical Co., 255 F. Supp. 2d 219, 225 (S.D.N.Y. 2003)); see also Moore v. Guesno,
485 F. Supp. 2d 300, 305 (W.D.N.Y. 2007). In addition, it is well-settled that a civil

claim pursuant to RICO “is an unusually potent weapon - the litigation equivalent of a
thermonuclear device. Because the mere assertion of a RICO claim . . . has an almost
inevitable stigmatizing effect on those named as defendants, . . . courts should strive to
flush out frivolous RICO allegations at an early stage of the litigation.” Gruber v.
Gilbertson, No. 16-CV-9727, 2019 WL 4458956, at *5 (S.D.N.Y. Sept. 17, 2019)
(quoting Katzman v. Victoria’s Secret Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y.

1996)) (internal quotations omitted).
B. Application
Liberally construed, plaintiff’s complaint alleges that the defendants conspired to
illegally detain plaintiff at BRNRC, in a concerted effort to fraudulently charge
plaintiff’s insurance company and “coerce/extort” out-of-pocket expenses from plaintiff

in order to increase revenue to the for-profit facility. Assuming, without deciding, that
plaintiff has sufficiently plead injury to his property, his claims pursuant to RICO
nevertheless fail to state a claim. At the outset, plaintiff’s allegations do not
sufficiently allege the elements of any of the relevant predicate acts of racketeering. To
defendants (1) induced plaintiff, with plaintiff’s consent, to part with property, (2)

through the wrongful use of actual or threatened force, violence or fear (including fear
of economic loss), (3) in such a way as to adversely affect interstate commerce.” Battle
v. Associates for Women’s Medicine, PLLC, No. 05-CF-8373, 2006 WL 2642137, at *6
(S.D.N.Y. Sep. 15, 2006) (citing McLaughlin v. Anderson, 962 F.2d 187, 194 (2d Cir.
1992)). Here, plaintiff vaguely asserts that the defendants “aggressively through illegal

means pressured, coerced, or attempted to extort payment from plaintiff . . . . [using]
duress, shaming, and other intimidating methods.” (Compl. at CM/ECF p. 8). Plaintiff
fails to articulate any specific acts by the defendants constituting the “use of actual or
threatened force, violence, or fear,” providing instead only conclusory allegations in
this regard.
Even assuming, arguendo, that plaintiff had adequately plead that the defendants

committed extortion for purposes of establishing a predicate act, plaintiff has not plead
two or more acts constituting a “pattern of racketeering activity” occurring within ten
years of each other. Plaintiff is challenging an isolated incident which occurred in

1Plaintiff also alleges that the defendants committed coercion. As the Supreme Court has
explained, extortion is distinct from coercion: “[w]hereas [extortion] require[s] . . . the criminal
acquisition of . . . property, [coercion] require[s] merely the use of threats to compel another person to
do or to abstain from doing an act which such other such person has a legal right to do or to abstain
from doing.” Sekhar v. United States, 570 U.S. _____, _____, 133 S.Ct. 2720, 2723, (2013) (citations
and internal quotation marks omitted). To the extent plaintiff alleges that the defendants alleged use or
threat of force to prevent him from leaving BRNRC constituted coercion, it has been held that such
conduct does not qualify as a predicate act under RICO. Mackin v. Auberger, 59 F. Supp. 3d 528, 550
(W.D.N.Y. 2014) (citing Spiteri v. Russo, No. 12-CV-2780, 2013 WL 4806960, at *48 n. 55 (E.D.N.Y.
Sept. 7, 2013) (“The Supreme Court has found that coercion without the transfer of property or an
attempt to obtain property is not extortion and not a RICO predicate act.”)).
constituted a “standard covert practice regularly coordinated” by the defendants, such

conclusory allegations are insufficient to recover under RICO.
Last, plaintiff has failed to allege that defendants were participants in a RICO
enterprise, the activities of which affected interstate commerce. “All of RICO’s
subsections require an enterprise ‘which is engaged in, or the activities of which affect,
interstate or foreign commerce.’ ” Aliev v. Borukhov, No. 15-CV-6113, 2016 WL

3746562, at *12 (E.D.N.Y. July 8, 2016) (citing 18 U.S.C. § 1962(a)-(c)). While “[t]he
law in this Circuit does not require RICO plaintiffs to show more than a minimal effect
on interstate commerce[,]” DeFalco v. Bernas, 244 F.3d 286, 309 (2d Cir. 2001), “even
a minimal showing, [ ] requires some factual allegations of a nexus with interstate
commerce.” Aliev, 2016 WL 3746562, at *12 (citing Moore v. Guesno, 485 F. Supp. 2d
300, 309 (W.D.N.Y. 2007), aff’d, 301 Fed. App’x 17 (2d Cir. 2008)). Here, plaintiff

does not make any allegations as to how the alleged conduct impacted interstate
commerce, except for his unsupported inference that defendants’ actions “raise the
possibility that [the alleged conduct] may be widespread involving their out-of-state
facilities, a pattern[.]” (Compl. at CM/ECF p. 8).
For each of the reasons cited above, plaintiff’s claim pursuant to RICO should be

dismissed.
IV. Criminal Statutes
A. Legal Standards
Crimes are prosecuted by the government, and not by private parties. Corrado v.
3181128, at *5 (E.D.N.Y. June 2, 2016) (citing Hill v. Didio, 191 F. App’x 13, 14-15

(2d Cir. 2006)). There is no private right of action to enforce federal criminal statutes,
unless the statute specifically authorizes it. Id. (quoting Vasile v. Dean Witter Reynolds
Inc., 20 F. Supp. 2d 465, 477 (E.D.N.Y. 1998) (citations omitted), aff’d, 205 F.3d 1327
(2d Cir. 2000)). This applies to both state and federal criminal statutes. See Carvel v.
Ross, No. 09-Civ. 722, 2011 WL 856283, at *11-12 (S.D.N.Y. Feb. 6, 2011) (citing

inter alia Abrahams v. Incorporated Village of Hempstead, No. 08-CV-2584, 2009 WL
1560164, at *8 (E.D.N.Y. June 2, 2009).
B. Application
Plaintiff alleges that the defendants have violated New York Penal Code Article
460 (enterprise corruption) and 25 C.F.R. §11.404 (false imprisonment). Both of these
statutes provide for criminal penalties, and there is no language in either which

explicitly authorizes, or implies, a private right of action. See, e.g., Wilson v.
Neighborhood Restore Dev., No. 18-CV-1172, 2019 WL 4393662, at *7 (E.D.N.Y.
Sept. 13, 2019) (no private right of action under Article 460); Turner v. City of Eagan,
No. 21-CV-0865, 2021 WL 5771202, at *2 (D. Minn. Dec. 6, 2021) (no private right of
action for false imprisonment under 25 C.F.R. §11.404). Thus, no matter plaintiff’s

assertions, he may not enforce these criminal statutes against any of the defendants, and
the complaint may be dismissed in this regard. To the extent plaintiff’s complaint
asserts a civil cause of action for false imprisonment pursuant to 42 U.S.C. § 1983, such
a claim is also subject to dismissal, for the reasons explained below.
A. Legal Standards

A claim for relief under 42 U.S.C. § 1983 must allege facts showing that the
defendant acted under the color of a state “statute, ordinance, regulation, custom or
usage.” 42 U.S.C. § 1983. Thus, to state a claim under § 1983, a plaintiff must allege
both that: (1) a right secured by the Constitution or laws of the United States was
violated, and (2) the right was violated by a person acting under the color of state law,

or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). Private parties are
generally not state actors, and are therefore not usually liable under § 1983. Sykes v.
Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty.
of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution
regulates only the Government, not private parties. . . .”) (internal quotation marks and

citation omitted).
For the purposes of section 1983, the actions of a nominally private entity are
attributable to the state 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 [s]tate,’ 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 [s]tate,’ (‘the public function test’).” Caballero v. Shayna, No.
18-CV-1627, 2019 WL 2491717, at *3 (E.D.N.Y. June 14, 2019) (citing Sybalski v.
fundamental question under each test is whether the private entity’s challenged actions

are ‘fairly attributable’ to the state.” Id. (quoting Fabrikant v. French, 691 F.3d 193,
207 (2d Cir. 2012)).
B. Application
Liberally construed, the complaint raises allegations of false imprisonment,
conspiracy, and retaliation pursuant to § 1983. However, plaintiff is suing BRNRC,

Amidon Medical Group, and Mohawk Valley Health Services, each of which entity
appears to be a privately owned facility or medical group. Plaintiff has not alleged any
facts suggesting that these entities are state actors under any of the aforementioned
exceptions, or describing how their actions are otherwise “fairly attributable to the
state.”
Likewise, BRNRC employees PA Jayne and Ms. Hulett are also private actors.

Because plaintiff has failed to plausibly allege that the named defendants acted under
color of state law, the complaint fails to state any claims for relief under § 1983. See
DuBois v. Bedford-Flatbush Chiropractic, P.C., 409 F. Supp. 3d 62, 69 (E.D.N.Y.
2019) (acknowledging that, in the context of § 1983, public functions do not include
operating nursing homes) (citing Manhattan Cmty. Access Corp. v. Halleck, ___U.S.

___, 139 S. Ct. 1921, 1926 (2019)); White v. St. Joseph’s Hosp., 369 Fed. App’x 225,
226 (2d Cir. 2010) (“[P]rivate actors and institutions, such as the hospitals, nursing
home, and cemetery named as defendants in [plaintiff’s] complaint, are generally not
proper § 1983 defendants because they do not act under color of state law.”); Thomas v.
(N.D.N.Y. Nov. 5, 2020) (rejecting plaintiff’s argument that defendant Mohawk Valley

Health System was a state actor, merely because it was a private institution that
received public funding). Accordingly, plaintiff’s complaint should be dismissed to the
extent it assets any claims pursuant to § 1983.
VI. Opportunity to Amend
A. Legal Standards

Generally, when the court dismisses a pro se complaint sua sponte, the court
should afford the plaintiff the opportunity to amend at least once; however, leave to
re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993).
B. Application
With respect to plaintiff’s RICO claims, the court finds that the defects contained

in the complaint are substantive; there is no amendment that plaintiff can make to the
complaint that would allow him to sue the named defendants under the RICO statute.
Moreover, the claims based on state and federal criminal statutes may be dismissed
with prejudice as against each named defendant, because these statutes do not provide
for private causes of action.

Furthermore, the court is further recommending dismissal of plaintiff’s § 1983
claims for lack of subject matter jurisdiction. Thus, any dismissal must be without
prejudice. Hollander v. Garrett, 710 F. App’x 35, 36 (2d Cir. 2018) (“[D]ismissal for
subject matter jurisdiction must be without prejudice.”). However, this court has
jurisdiction over the situation that plaintiff describes in his complaint. As there appears

no basis for plaintiff to raise his claims in federal court, the court should not allow
plaintiff to amend, notwithstanding a dismissal without prejudice. Because lack of
subject matter jurisdiction is a substantive defect, Deul v. Dalton, No.
1:11-CV-0637(GTS/RFT), 2012 WL 235523, at *8 n.19 (N.D.N.Y. Jan. 25, 2012), the
court recommends dismissal without leave to amend as to plaintiff’s § 1983 claims.

WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff’s motion to proceed IFP (Dkt. No. 2) is GRANTED
FOR PURPOSES OF FILING, and it is
RECOMMENDED, that plaintiff’s claims predicated on the RICO statute be
DISMISSED WITH PREJUDICE against all of the named defendants, and it is

RECOMMENDED, that any claims alleged by plaintiff pursuant to criminal
statutes New York Penal Code Article 460 (enterprise corruption) and 25 C.F.R.
§11.404 (false imprisonment) be DISMISSED WITH PREJUDICE against all of the
named defendants, and it is
RECOMMENDED, that this action otherwise be DISMISSED WITHOUT

PREJUDICE, but without the opportunity for amendment, and it is
ORDERED, that the Clerk of the Court serve a copy of this Order and Report-
Recommendation on the plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary
of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: January 5, 2023

Andrew T. Baxter
U.S. Magistrate Judge

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315476. Public record. Not legal advice.