Lauro v. Community

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

______________________________________________________________________

UMBERTO LAURO,

Plaintiff,

v. 5:23-CV-1635

(LEK/ATB)

CHRISTOPHER COMMUNITY, et al.,

Defendants.

______________________________________________________________________

UMBERTO LAURO, Plaintiff, pro se

ANDREW T. BAXTER, U.S. Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent to the court for review a complaint, together with an

application to proceed in forma pauperis (“IFP”), filed by pro se plaintiff, Umberto

Lauro. (Dkt. Nos. 1, 2).

I. IFP Application

Plaintiff declares in his IFP application that he is unable to pay the filing fee.

(Dkt. No. 2). After reviewing his application and supporting documents, this court

finds that plaintiff is financially eligible for IFP status.

However, 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 the case at any time if the court determines that the action is (i) 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)(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), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S.

544 (2007) and 28 U.S.C. § 1915. 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. Eldredge, 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 E. 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).

In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Although

Rule 8 does not require detailed factual allegations, it does “demand[] more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman,

No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016)

(quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so

vague as to fail to give the defendants adequate notice of the claims against them’ is

subject to dismissal.” Id. (citing Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir.

2009)).

II. Complaint

Plaintiff purports to bring this action pursuant to 42 U.S.C. § 1983 and Title VII

of the Civil Rights Act. (Complaint (“Compl.”) at 1, 5) (Dkt. No. 1).1 The named

defendants include Walter Lodovico, Christopher Community, and Richard Dunlap.

(Id. at 1-2, 5).

In the first form complaint, plaintiff alleges that on May 8, 2023, defendant

Richard Dunlap “claimed that [plaintiff] shoved him.” (Compl. at 2). Plaintiff states

that when he “arrived home the appearance ticket was on [his] door.” (Id.). Plaintiff

also states that the “property manager was questioning [him], so [he] shut the door in

1 Plaintiff has filed several form-complaints as one action, including a complaint for 42 U.S.C. § 1983

cases, a Civil Complaint Pursuant to Title VII of the Civil Rights Act, and a general pro se complaint

form. (See Compl.). For the sake of clarity, the court will cite to the pages of this filing as have been

assigned by the court’s electronic filing system (CM/ECF).

the [property manager’s] face. (Id.). Plaintiff seeks “2 million dollar[s] for relief.” (Id.

at 4).

In the second form complaint pursuant to Title VII, plaintiff alleges employment

discrimination—specifically, that “defendant’s conduct is discriminatory with respect

to” plaintiff’s “health.” (Compl. at 6).

In the third form complaint, in the Statement of Claim, plaintiff alleges that

unidentified defendants “viol[at]ed civil rights which resulted in decrease of health.”

(Compl. at 13). He further states that “they stole documentation, clothes, and

[miscellaneous] items. Also took title for vehicle [sic] value of 14 million.” (Id.).

III. Discussion

The court is well-aware that pro se pleadings must be read to raise the strongest

arguments that they suggest. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). In

this case, even if read liberally, plaintiff’s complaint is devoid of factual allegations that

give rise to any section 1983 claims, employment discrimination claims, or any other

causes of action over which this court has jurisdiction.

A. Section 1983

Plaintiff’s purported section 1983 claims fail, because he has failed to allege that

his constitutional rights were violated by a person acting under the color of state law. 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.

Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). “The

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)).

Here, plaintiff has named two individuals and a “not-for-profit development and

management company”2 as defendants. Neither of the individual defendants are alleged

to be state actors, nor has plaintiff alleged that they otherwise acted under color of state

law. Accordingly, plaintiff’s section 1983 claim should be dismissed as against them.

See Harrison v. New York, 95 F. Supp. 3d 293, 322 (E.D.N.Y. 2015) (“The conduct of

private persons or entities, ‘no matter how discriminatory or wrongful,’ generally does

not constitute state action and therefore cannot form the basis of a Section 1983

claim.”).

Likewise, plaintiff has failed to allege any state action on the part of defendant

Christopher Community. It is well established that receipt of government funding, “no

matter how extensive, is insufficient to transform otherwise private conduct into state

action.” Young v. Halle Hous. Assocs., L.P., 152 F. Supp. 2d 355, 362 (S.D.N.Y. 2001);

Aponte v. Diego Beekman M.H.A. HDFC, No. 16-CV-8479, 2019 WL 316003, at *12

(S.D.N.Y. Jan. 24, 2019) (dismissing Section 1983 claims based on “entwinement”

theory where plaintiffs alleged that landlord “receive[d] public funds and tax

exemptions in exchange for providing low-income housing,” and holding that entities

do not become state actors “simply because those entities receive state funding for

providing a public service” (citing Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982));

Holden v. E. Hampton Town, No. 15-CV-4478, 2017 WL 1317825, at *5-6 (E.D.N.Y.

2 Christopher Community, Inc., the entity which plaintiff appears to intend to name as a defendant,

“administer[s] Onondaga County’s Rental Assistance Program (Section 8)[,]” among other things. See

https://christopher-community.org/ (last visited January 2, 2024).

Mar. 31, 2017) (landlord was not a state actor despite its “accept[ance of] subsidized

rental payments from the Town[ ] . . . for qualified low-income tenants”). Thus, to the

extent plaintiff is alleging that this defendant accepted government financing for the

provision of low-income housing, it is insufficient to raise a plausible inference that it is

a state actor.

Moreover, the provision of housing, even so-called low-income housing, is not a

function that is “traditionally exclusively reserved to the State.” Aponte, 2019 WL

316003, at *13 (“the provision of housing, for the poor or for anyone else, has never

been the exclusive preserve for the state, but has been left to a regulated, and

occasionally subsidized, private marketplace” (citing Young, 152 F. Supp. 2d at 365));

Holden, 2017 WL 1317825, at *5 (“Providing low-cost housing does not constitute a

‘public function’ within the meaning of Section 1983 because it is not an activity or

function exclusively reserved by the state.” (citing Young, 152 F. Supp. 2d at 365)).

Accordingly, plaintiff’s failure to otherwise plead how Christopher Community’s

actions were attributable to the state renders dismissal of his section 1983 claim as

against this defendant warranted.3

3 On the other hand, courts have found public housing authorities to be state actors for the purpose of

section 1983. See Davis v. N.Y.C. Hous. Auth., 379 F. Supp. 3d 237, 252, 256 (S.D.N.Y. 2019)

(referring to a public housing authority as a state actor); Gagliardi v. E. Hartford Hous. Auth., No.

Civ. 3:02CV478, 2005 WL 2177078, at *4 (D. Conn. Sept. 8, 2005); Burr v. New Rochelle Mun.

Hous. Auth., 479 F.2d 1165, 1167 (2d Cir. 1973) (rejecting municipal housing authority’s claim that it

is not a government agency and that, therefore, there was no state action); Tyson v. N.Y.C. Hous. Auth.,

369 F. Supp. 513, 522 (S.D.N.Y. 1974) (“The defendants’ action in adjudging the plaintiffs

nondesirable tenants and in ordering their eviction are acts of the state and therefore satisfy the state

action requirement of Section 1983.”); Short v. Fulton Redevelopment Co., Inc., 390 F. Supp. 517, 519

(S.D.N.Y. 1975) (concluding “that the involvement of the Federal, State and local governments in

Even if the Christopher Community could be considered a state actor, this

defendant is not specifically mentioned at any point in the minimal recitation of factual

allegations provided in the body of plaintiff’s complaint. Thus, plaintiff fails to meet

the basic requirements of pleading a viable claim against this entity under Fed. R. Civ.

P. 8. See, e.g., Crichlow v. Annucci, 18-CV-3222, 2021 WL 5234522, at *2 (S.D.N.Y.

Nov. 10, 2021) (dismissing, for failure to state a claim upon which relief may be

granted, those claims against defendants who were identified in the caption of the third

amended complaint but, “the Court [wa]s unable to find reference to them anywhere

else in the pleading.”); Joseph v. Annucci, 18-CV-7197, 2020 WL 409744, at *4

(S.D.N.Y. Jan. 23, 2020) (dismissing claims against defendants that were “named in the

caption only” where “[t]he body of the Complaint does not contain any factual

allegations naming them, or indicating that they violated the law or injured Plaintiff in

some manner.”).

B. Title VII

Plaintiff also alleges employment discrimination pursuant to Title VII. However,

there is nothing in the complaint to suggest that plaintiff was employed by any of the

named defendants, much less that he was subject to an adverse employment action

these two housing projects is sufficient to constitute State action under the Fourteenth Amendment”).

At this juncture, it is entirely unclear from plaintiff’s allegations whether defendant Christopher

Community operates as a public housing authority, or merely owns and operates affordable housing

for those in receipt of public assistance.

under circumstances giving rise to an inference of unlawful discrimination.4 Nor has

plaintiff plead that he was a member of a protected class as enumerated by the statute.

See Volpe v. Connecticut Dep’t of Mental Health & Addiction Servs., 88 F. Supp. 3d 67,

72 (D. Conn. 2015) (“The plain language of Title VII shows that it only protects against

employment discrimination “because of . . . race, color, religion, sex, or national

origin.”) (citing 42 U.S.C. § 2000e–2(a)(1)). Accordingly, plaintiff’s purported Title

VII claims should be dismissed.

C. State Law Causes of Action

Plaintiff alleges, without specification, that “they stole documentation, clothes,

and misc. items. Also took title for vehicle . . . .” (Compl. at 13). To the extent

plaintiff is intending to assert a cause of action for conversion, or any other state law

claim, diversity jurisdiction would be required.5 In this case, however, there is no

indication that the parties are diverse: plaintiff alleges that both he and the defendants

maintain addresses in the state of New York. (Compl. at 1-2, 5, 10-11; Dkt. No. 1-1 at

1) . He makes no further allegations regarding citizenship. Accordingly, plaintiff has

failed to invoke this court’s diversity jurisdiction, and any state law causes of action his

4 “To plead a Title VII discrimination claim, a plaintiff must ‘establish a prima facie case of . . .

discrimination by demonstrating that (1) [s]he was within the protected class; (2) [s]he was qualified

for the position; (3) [s]he was subject to an adverse employment action; and (4) the adverse action

occurred under circumstances giving rise to an inference of discrimination.’ ” Farooq v. City of New

York, No. 20-3185, 2022 WL 793117, at *2 (2d Cir. Mar. 16, 2022) (quoting Menaker v. Hofstra

Univ., 935 F.3d 20, 30 (2d Cir. 2019)(cleaned up)).

5 This is assuming that plaintiff had sufficiently plead any state law claims, a question the court

seriously questions but need not reach at this juncture.

complaint may raise should be dismissed.6 See Herrick Co., Inc. v. SCS Commc’n, Inc.,

251 F.3d 315, 322-23 (2d Cir. 2001) (The party seeking to invoke the court’s

jurisdiction bears the burden of “demonstrating that the grounds for diversity exist and

that diversity is complete.”) (citations omitted).

IV. Opportunity to Amend

Generally, before the court dismisses a pro se complaint or any part of the

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). Futility is

present when the problem with plaintiff’s causes of action is substantive such that better

pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation

omitted).

The court is recommending dismissal of this action 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). This court has serious doubts about whether plaintiff

can amend to assert any form of federal jurisdiction with respect to the alleged conduct

that plaintiff describes in his complaint. However, given that plaintiff’s grossly

deficient pleading makes it difficult to understand the nature of the conduct alleged and

6 Considering my recommendation that the district court dismiss all of plaintiff’s federal causes of

action, the court need not decide at this juncture whether supplemental jurisdiction would apply to

plaintiff’s purported state law claims. See, e.g., Torres v. City of New York through New York City

Dep’t, 590 F. Supp. 3d 610, 629 (S.D.N.Y. 2022) (“A district court usually should decline the

exercise of supplemental jurisdiction [over state law claims] when all federal claims have been

dismissed at the pleading stage.” (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 266 (2d Cir.

2006)).

the role of the named defendants, in the exercise of an abundance of caution, this court

recommends that plaintiff be provided with an opportunity to amend his claims. See

Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (Finding that sua sponte dismissals

by the court pursuant to sections 1915 and 1915A “must” accord the plaintiff an

opportunity to amend the complaint “unless the court can rule out any possibility,

however unlikely it might be, that an amended complaint would succeed in stating a

claim.”); Mojias v. Johnson, 351 F.3d 606, 610-11 (2d Cir. 2003) (“[U]nless it is

unmistakably clear that the court lacks jurisdiction, or that the complaint lacks merit or

is otherwise defective, we believe it is bad practice for a district court to dismiss

without affording a plaintiff the opportunity to be heard in opposition.”) (quoting Snider

v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)).

If the court approves this recommendation and allows plaintiff to submit a

proposed amended complaint, plaintiff should be warned that any amended complaint

must be a complete and separate pleading. Plaintiff must state all of his claims in the

new pleading and may not incorporate by reference any part of his original complaint.

Plaintiff should also be aware that any opportunity afforded to amend his complaint in

order to state a claim for relief is not an invitation to file another frivolous pleading.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiff’s motion to proceed IFP (Dkt. No. 2) be GRANTED,7

and it is

7 Although his IFP Application has been granted, plaintiff will still be required to pay fees that he may

incur in this action, including copying and/or witness fees.

RECOMMENDED, that this action be DISMISSED WITHOUT

PREJUDICE, with leave to amend, and it is

RECOMMENDED, that if the district court adopts this Order and Report-

Recommendation, plaintiff be given forty-five (45) days to amend his complaint,

identifying the nature of any state action by particular individuals or entities giving rise

to violations of his constitutional rights. If plaintiff does file a proposed amended

complaint, plaintiff should be warned that any amended complaint must be a complete

and separate pleading. Plaintiff must state all of his claims in the new pleading and

may not incorporate by reference any part of his original complaint, and it is

RECOMMENDED, that if the district court adopts this Order and Report-

Recommendation, and plaintiff files a proposed amended complaint, such proposed

amended complaint be returned to me for initial review, and it is

RECOMMENDED, that if the district court adopts this Order and Report-

Recommendation, and plaintiff does not elect to file an amended complaint within the

proposed deadline, or request an extension of time to do so, the Clerk enter judgment

dismissing this action without further order of the court, and it is

ORDERED, that the Clerk of the Court serve a copy of this Order and Report-

Recommendation on 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. Sec’y of

Health and Hum. Servs., 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 3, 2024 A foe) Ye Bate.

Andrew T. Baxter

U.S. Magistrate Judge

13