Smith v. Johnson

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

BISHME SMITH,

Plaintiff,

v. 5:24-CV-0368

(MAD/ML)

TERESA JOHNSON; MICHELLE

FOLINO; RENEE HALL; STEPHANIE

ALBERT; HOLLEY DAVIS; and

JULIE RICHARDSON,

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

BISHME SMITH

Plaintiff, Pro Se

10 Centennial Drive, Apt. B3

Syracuse, New York 13207

MIROSLAV LOVRIC, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent a pro se complaint together with an application to proceed in forma

pauperis (“IFP”) in the above captioned action filed by Bishme Smith (“Plaintiff”) to the Court

for review. (Dkt. Nos. 1, 2.) For the reasons discussed below, I (1) grant Plaintiff’s IFP

application (Dkt. No. 2), and (2) recommend that Plaintiff’s Complaint (Dkt. No. 1) be dismissed

with leave to replead.

I. BACKGROUND

Plaintiff commenced this action on March 17, 2024, by the filing of a verified Complaint

against defendants Teresa Johnson, Michelle Folino, Renee Hall, Stephanie Albert, Holley

Davis, and Julie Richardson (collectively “Defendants”). (Dkt. No. 1.) The allegations set forth

in the Complaint are substantially similar to allegations set forth by Plaintiff in another action

pending in this district, Smith v. Davis, 5:22-CV-1202 (MAD/ML) (“Smith I”). (Compare Dkt.

No. 1, with Smith I, Dkt. Nos. 1, 42.)

In sum, the Complaint alleges that Plaintiff and his family began renting an apartment in

Black River Apartments housing complex in November 2021. (Dkt. No. 1 at ¶ 11.) The

Complaint alleges that Defendant Johnson was the manager of the property and beginning on

December 1, 2021, Plaintiff experienced issues with the property “rang[ing] from not having the

correct mailbox key . . . to rent calculations being incorrect and . . . heat not working for a few

days at a time.” (Dkt. No. 1 at ¶ 12.) The Complaint alleges that Plaintiff attempted to rectify

the issues by contacting Defendants, but the issues were either not resolved or not resolved in a

timely fashion. (Dkt. No. 1 at ¶¶ 19-20; see generally Dkt. No. 1.)

The Complaint alleges that a new tenant moved into the apartment above Plaintiff’s at the

end of February/beginning of March 2022, and conflicts between Plaintiff and the new tenant

began. (Id. at ¶ 13.) The Complaint alleges that Plaintiff attempted to contact Defendants

regarding the conflicts with the new tenant but did not receive a response. (Id. at ¶ 14.)

The Complaint alleges that on May 30, 2022, an incident occurred at Plaintiff’s

apartment between Plaintiff and the new tenant that resulted in Plaintiff calling the police and

Plaintiff being charged with the criminal violation of harassment. (Id. at ¶ 15.)

The Complaint alleges that Plaintiff requested to move to another unit because the close

geographic proximity to the new tenant was causing a decline in his mental health but that

Defendants did not provide that accommodation. (Dkt. No. 1 at ¶¶ 17-18.)

The Complaint alleges that on July 27 (of an unspecified year), Plaintiff filed a formal

complaint for discrimination with FHEO, HUD on the basis of race and disability. (Dkt. No. 1 at

¶ 21.)

The Complaint alleges that on August 22, 2022, the criminal violation of harassment was

dismissed against Plaintiff. (Dkt. No. 1 at ¶ 23.) Plaintiff alleges that he shared news of the

dismissal and documents reflecting the same with Defendants. (Id.)

The Complaint alleges that on September 10, 2022, Plaintiff received a letter from FHEO

HUD confirming receipt of his complaint and confirming that the complaint had been forwarded

to Defendants. (Dkt. No. 1 at ¶ 24.) The Complaint alleges that on September 14, 2022,

Plaintiff received a “Notice to Vacate” stating that Plaintiff and his family must vacate their

apartment by November 30, 2022. (Id. at ¶ 25.)

The Complaint alleges that Plaintiff and Defendants exchanged a series of

correspondence regarding the basis for the eviction and that Plaintiff provided documents

rebutting Defendants’ proffered reason. (Dkt. No. 1 at ¶ 26.) Plaintiff alleges that his family

was ultimately evicted and homeless for six months because Defendants provided false

information to assistive agencies and organizations that Plaintiff was attempting to work with.

(Id. at ¶¶ 27-35.)

Based on these factual allegations, the Complaint appears to allege the following five

claims: (1) a claim pursuant to 42 U.S.C. § 1983 against Defendants; (2) a claim that Defendants

improperly disseminated information protected by the Privacy Act; (3) a claim of defamation per

se against Defendants; (4) a claim of defamation against Defendants; and (5) a claim of

intentional infliction of emotional distress. (Dkt. No. 1 at 11-20.) As relief, Plaintiff seeks

compensatory damages in the amount of $2,000,000, punitive damages, reasonable attorney fees,

and other relief deemed just and equitable by the Court. (Dkt. No. 1 at 20-21.)

Plaintiff also seeks leave to proceed IFP.

II. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS

When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,

however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the

standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).1 After reviewing Plaintiff’s in

forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard.

Therefore, Plaintiff’s application to proceed in forma pauperis is granted.2

III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT

“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines 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).

1 The language of that section is ambiguous because it suggests an intent to limit

availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1)

(authorizing the commencement of an action without prepayment of fees “by a person who

submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts

have construed that section, however, as making in forma pauperis status available to any litigant

who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed.

Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).

2 Plaintiff is reminded that, although his application to proceed in forma pauperis has been

granted, he is still required to pay fees that he may incur in this action, including copying and/or

witness fees.

“In reviewing a complaint . . . the court must accept the material facts alleged in the

complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.

Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court

must accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d

66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)

(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint

sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua

sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .

. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).

IV. ANALYSIS

In addressing the sufficiency of a plaintiff’s complaint, the court must construe his

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).

Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that it be

dismissed for failure to state a claim upon which relief may be granted.

A. Claims Pursuant to 42 U.S.C. § 1983

To the extent that Plaintiff attempts to assert any constitutional claims, the Court

construes those claims as made pursuant to 42 U.S.C. § 1983. “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.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (internal

quotation marks omitted). “A plaintiff pressing a claim of [a] violation of his constitutional

rights under § 1983 is thus required to show state action.” Fabrikant, 691 F.3d at 206 (internal

quotation marks omitted). “State action requires both . . . the exercise of some right or privilege

created by the State . . . and” the involvement of “a person who may fairly be said to be a state

actor.” Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (internal

quotation marks and brackets omitted).

There is no single test that is determinative of whether a private person or entity may be a

state actor, but rather a host of factors. Baum. N. Dutchess Hosp., 764 F. Supp. 2d 410, 428

(N.D.N.Y. 2011) (Treece, M.J.). A state actor may be found when: (1) “[the challenged activity]

results from the State’s exercise of coercive powers”; (2) “the State provides significant

encouragement, either overt or covert . . . or when a private actor operates as a willful participant

in joint activity with the State or its agents”; (3) “it is controlled by an agency of the State;” (4)

“it has been delegated a public function by the State [known as the public function test]”; or (5)

“it is entwined with governmental policies or when government is entwined in its management or

control[.]” Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296

(2001) (citations, quotation marks, and alterations omitted).3

Here, Defendants ostensibly are private actors. However, in the interest of reading

Plaintiff's Complaint “liberally and interpreted to raise the strongest arguments that [it can]

3 On occasion, these criteria have been stated differently but the impact remains the same:

The conduct of private actors can be attributed to the State for [§ 1983]

purposes if (1) the State compelled the conduct, (2) there is a sufficiently

close nexus between the State and the private conduct, or (3) the private

conduct consisted of activity that has traditionally been the exclusive

prerogative of the State.

Hogan v. A.O. Fox Mem'l Hosp., 346 F. App’x 627, 629 (2d Cir. 2009) (citing Sybalski v. Indep.

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

suggest,” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013), the Court considers whether

Defendants’ alleged activities establish “such a ‘close nexus between the State and the

challenged action’ that seemingly private behavior ‘may be treated as that of the State itself.’”

Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (quoting Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)).

The only nexus between Defendants and the government is the allegation in the

Complaint that

Defendants collectively and separately are employees of a Federally

funded housing management company and in their official capacities due

to receiving government funds by HUD, Defendants have the independent

authority, and in executing that authority given to them by HUD, it

appears that the government authorized it, although defendants

collectively abused that authority and were acting under the color of law.

(Dkt. No. 1 at ¶ 37.) Courts in this Circuit have held that receipt of federal funds and being

subject to HUD regulations are insufficient to “even approach the close nexus test.” Hylton v.

RY Mgmt., 05-CV-6710, 2006 WL 2088196, at *4 (S.D.N.Y. July 25, 2006); see Miller v.

Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Cir. 1982) (“[L]essors in Section 8 new

construction housing programs act as private parties.”); Bowman v. Mitchell, 10-CV-0005, 2010

WL 1529473, at *2 (W.D. Ky. Apr. 14, 2010) (“The fact that Defendants work for and live in a

property that is regulated by HUD is not enough to transform them into state actors.”).

As a result, I recommend that Plaintiff’s claims pursuant to 42 U.S.C. § 1983 against

Defendants be dismissed because they are not state actors.

B. Claims Pursuant to the Privacy Act

The Complaint asserts claims pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a,

which allows individuals to request access to federal agency records about themselves. Devine v.

United States, 202 F.3d 547, 550 (2d Cir. 2000). The Privacy Act also allows an individual to

bring a civil suit against a federal agency that “fails to comply” with the statute such that the

individual suffers an adverse effect. Devine, 202 F.3d at 550-51 (quoting 5 U.S.C. §

552a(g)(1)(D)). The statute does not permit such claims against a private entity, Pennyfeather v.

Tessler, 431 F.3d 54, 56 (2d Cir. 2005) (citation omitted), or against individual federal

employees, Mamarella v. Cnty. of Westchester, 898 F. Supp. 236, 238 (S.D.N.Y. 1995) (noting

that “the plain language of [the Privacy Act] provides that only ‘agencies’ are subject to the

[statute],” not individuals).

Therefore, I recommend that Plaintiff's claims under 5 U.S.C. § 552a be dismissed

against Defendants—who are private individuals—for failure to state a claim upon which relief

may be granted. See Razzoli v. Richmand Univ. Med. Ctr., 23-CV-6697, 2023 WL 7017105, at

*4 (E.D.N.Y. Oct. 25, 2023) (dismissing the plaintiff’s Privacy Act claims where there was not

an agency named as a defendant).

C. State Law Claims

Having found that all of Plaintiff’s federal claims are subject to dismissal, the

undersigned recommends that the Court decline to exercise jurisdiction over Plaintiff’s

remaining state law claims. See 28 U.S.C. § 1367(c)(3) (providing that a district court “may

decline to exercise supplemental jurisdiction over [pendent state law claims] if . . . the district

court has dismissed all claims over which it has original jurisdiction”); Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors to be considered under the pendent jurisdiction

doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to

exercise jurisdiction over the remaining state-law claims.”); Walker v. Time Life Films, Inc., 784

F.2d 44, 53 (2d Cir. 1986) (holding that “federal courts, absent exceptional circumstances,

should abstain from exercising pendent jurisdiction when federal claims in a case can be

disposed of by summary judgment”) (citing Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1180

(1974)).

Accordingly, I recommend that Plaintiff's state law claims against Defendants be

dismissed.

V. OPPORTUNITY TO REPLEAD

Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to replead at least once “when a liberal reading of the complaint

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05

(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when

justice so requires.”). An opportunity to replead is not required, however, where “the problem

with [the 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); see also Cortec Indus. Inc. v. Sum Holding

L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact

sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated

differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is

not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1

(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).4

4 See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)

(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171

F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can

rule out any possibility, however unlikely it might be, that an amended complaint would be

successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.

Out of deference to Plaintiff’s pro se status, I recommend that he be permitted to amend

his Complaint.

If Plaintiff chooses to file an amended complaint, he should note that the law in this

circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient

unless they contain some specific allegations of fact indicating a deprivation of rights, instead of

a litany of general conclusions that shock but have no meaning.’” Hunt v. Budd, 895 F. Supp.

35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.

1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.

May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth

facts that give rise to the claims, including the dates, times, and places of the alleged underlying

acts, and each individual who committed each alleged wrongful act. In addition, the revised

pleading should allege facts demonstrating the specific involvement of any of the named

defendants in the constitutional deprivations alleged in sufficient detail to establish that they

were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.

1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing

Complaint, and must be a wholly integrated and complete pleading that does not rely upon or

incorporate by reference any pleading or document previously filed with the Court. See Shields

v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an

amended complaint ordinarily supersedes the original and renders it of no legal effect.”).

ACCORDINGLY, it is

ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is

GRANTED; and it is further respectfully

RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD

Plaintiff's Complaint (Dkt. No. 1), because it fails to state a claim upon which relief may be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further

ORDERED that the Clerk of the Court shall file a copy of this report and

recommendation on the docket of this case and serve a copy upon the parties in accordance with

the local rules.”

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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. 28 U.S.C. § 636(b)(1) (Supp. 2013);

Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.

Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: June 14 , 2024

Binghamton, New York

Miroslav Lovric

U.S. Magistrate Judge

5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein

in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

6 If you are proceeding pro se and served with this report, recommendation, and order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date that the report, recommendation, and order was mailed to you to

serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

11

2006 WL 2088196 motions to dismiss are granted.

Only the Westlaw citation is currently available.

United States District Court, Plaintiff worked as a dispatcher and porter for approximately

S.D. New York. eight years at the River Park Towers, a federally subsidized

housing development located in Bronx, New York..

Gina HYLTON, Plaintiff, Defendant River Park owns River Park Towers. Plaintiff was

v. initially hired in the management office of River Park to

RY MANAGEMENT, River Park Associates, perform dispatcher and clerical duties. In 1993, plaintiff was

Bernard Young, a Contract Arbitrator, and Service transferred to the maintenance office, where she worked as a

porter.

Employees International Union, Local 32BJ, Defendants.

No. 05 CV 6710(GBD). Plaintiff was a rank and file member of Local 32BJ. In

| 2000, plaintiff was elected by her fellow workers as “Shop

July 25, 2006. Steward,” the union-sanctioned representative of her fellow

employees. Plaintiff alleges that the service she performed for

union constituents caused defendants to conspire against her.

Plaintiff further alleges that RY Management had a practice

MEMORANDUM DECISION AND ORDER

of intentionally purchasing inadequate cleaning supplies,

DANIELS, J. then blaming workers for not satisfactorily performing their

janitorial duties.

*1 On March 11, 2005, pro se plaintiff Gina Hylton filed

a complaint in the Supreme Court of the State of New Plaintiff alleges that after she was elected Shop Steward,

York against her union, Service Employees International she was summarily removed from the Maintenance office.

Union, Local 32BJ (“Local 32BJ”), her former employers, RY Plaintiff further alleges that she was assigned to work by

Management and River Park Associates (“River Park”), and herself on the outside grounds, stairways, and roof of River

Bernard Young, a contract arbitrator.1 Pursuant to 29 U.S.C. Park Towers. Plaintiff alleges that she was not given any

§§ 1441 and 1446, the matter was removed to this Court. orientation or training to perform the janitorial work in a

proper and safe manner.

Plaintiff alleges that River Park and Local 32BJ conducted

unfair labor practices by engaging in a “secret and unlawful On March 11, 2002, River Park terminated plaintiff's

collaboration” to make it “markedly difficult” for plaintiff employment, citing numerous work deficiencies including

to carry out her bargaining duties as shop steward. Plaintiff failure to complete assigned work, failure to follow the

further alleges that defendants collaborated to arbitrarily orders of management, and other personal misconduct. In

terminate her employment in breach of their collective April, 2002, Local 32BJ filed a complaint against River

bargaining agreement. Plaintiff also alleges that Local 32BJ Park on plaintiffs' behalf alleging that she was discharged in

failed to subpoena key witnesses at plaintiff's arbitration contravention of the union's collective bargaining agreement.

proceeding in breach of its duty of fair representation under Plaintiff claims that she was suspended, and later terminated,

the collective bargaining agreement. Plaintiff alleges that because of false charges filed by RY Management. RY

“although [her] dues were always current, she was prevented Management charged that plaintiff used a vacant apartment

from using the medical services provided by the insurance room for her personal use. An arbitration hearing was held on

coverage of [her union].” Plaintiff makes numerous state and November 8, 2002. Plaintiff alleges that legal counsel for the

federal statutory claims, as well as tort and constitutional union did not subpoena key witnesses to testify on plaintiff's

claims. Plaintiff also claims intentional infliction of emotional behalf. On December 10, 2002, the arbitrator concluded that

distress. the plaintiff had been “discharged for just cause.”

Defendants move to dismiss plaintiff's claims, pursuant to *2 A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)

Fed.R.Civ.P. 12(b)(6). Defendants argue that the complaint is (6) will be denied “unless it appears beyond doubt that

time-barred. Defendants further argue that the complaint does the plaintiff can prove no set of facts in support of [her]

355 U.S. 41, 45-46 (1957). In assessing the sufficiency of An employee may sue both her former employer and her

a pleading, factual allegations in the complaint must be union in response to the employee's belief that she was not

taken as true and reasonable inferences must be construed fairly represented at an arbitration hearing. DelCostello, 462

in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, U.S. at 164; Carrion, 227 F.3d at 33. This type of suit

236 (1974). Since plaintiff is proceeding pro se, the pleadings is known as a hybrid Section 301/fair-representation claim

of the amended complaint are to be liberally construed because it alleges that (1) the employer breached the labor

and interpreted in such a manner as to raise the strongest contract and that (2) the union breached its duty of fair

argument they suggest. See Haines v. Kerner, 404 U.S. 519, representation. DelCostello, 462 U.S. at 164-65; Carrion, 227

520-21 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d F.3d at 33. A six-month statute of limitations applies to hybrid

Cir.1994). This is particularly applicable with regard to a Section 301/fair-representation claims, which commences

pro se complaint asserting civil rights violations. Deravin v. when the arbitrator issues the award. Ghartey v. St. Johns

Kerik, 335 F.3d 195, 200 (2d Cir.2003). In discrimination Queens Hosp., 869 F.2d 160, 164-66 (2d Cir.1989); see also

cases, the pleading requirements “ ‘are very lenient, even Kavowras v. New York Times, 328 F.3d 50, 56 (2d Cir.2003).

de minimis.” ’ Id. (quoting Brown v. Coach Stores, Inc.,

163 F.3d 706, 710 (2d Cir.1998)). Accordingly, plaintiff's *3 The arbitrator issued his decision on December 10,

amended complaint will be held to “ ‘less stringent standards 2002. Under the six-month statute of limitations period, the

than formal pleadings drafted by lawyers,’ and can only be plaintiff's hybrid Section 301/fair-representation claim and

dismissed for failure to state a claim if it appears ‘beyond unfair labor practices claim were required to have been filed

doubt that the plaintiff can prove no set of facts in support no later than June 10, 2003. Plaintiff did not file her original

of [her] claim which would entitle [her] to relief.” ’ Estelle v. complaint until March 11, 2005, nearly two years after the

Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, statute of limitations period. Plaintiff's claims are therefore

404 U.S. 519, 520-21 (1972)). dismissed as time-barred.

Unfair Labor Practice Claim Improper Discipline under the LMRDA.

Sections 7 and 8 of the National Labor Relations Act Plaintiff claims that she was improperly disciplined under

(“NLRA.”), 29 U.S.C. §§ 157-58, govern plaintiff's unfair the or Labor Management Reporting and Disclosure Act, or

labor practices claim against the defendant. These claims are Landrum-Griffin Act (“LMRDA”). Plaintiff has failed to state

subject to the exclusive jurisdiction of the National Labor a cause of action under the LMRDA. The LMRDA states that

Relations Board. San Diego Bldg. Trades Council, Millmen's

Union, Local 2020 v. Garmon, 359 U.S. 236, 245 (1959);

“[n]o member of any labor organization

see also Golden State Transit Corp. v. City of Los Angeles,

may be fined, suspended, expelled,

493 U.S. 103, 108 (1989) (holding that the National Labor

or otherwise disciplined ... by such

Relations Board has exclusive jurisdiction to prevent and

organization or by any officer thereof

remedy unfair labor practices by employers and unions). This

unless such member has been (A) served

Court therefore lacks jurisdiction over this claim. See Buckley

with written specific charges; (B) given

v. American Federation of Television, 496 F.2d 305, 311-12

a reasonable time to prepare his defense;

(2d Cir.1974). Plaintiff's claim under the NLRA is dismissed.

(C) afforded a full and fair hearing.”

Section 401/Fair-Representation Claim

Plaintiff's claim that she was terminated without just cause

in breach of the collective bargaining agreement is governed 29 U.S.C. § 411(a)(5). This provision protects employees

by Section 301 of the Labor Management Relations Act, 29 against the disciplinary actions of unions; it does not protect

U.S.C. § 185. See DelCostello v. Int'l Bd. of Teamsters, 462 employees against the disciplinary actions of employers. See

U.S. 151, 164 (1983). Local 32BJ's duty of fair representation Breininger v. Sheet Metal Workers Int'l Ass'n Local Union No.

is “implied under the scheme of the National Labor Relations 6, 493 U.S. 67, 92 (1989) (holding that the term “discipline”

Act.” See Delcostello, 462 U.S. at 164; Carrion v. Enterprise refers to “punishment that a union can impose by virtue of

Cir.1996) (“discipline” refers only to actions taken by a union constituting state action. See Schlein v. Milford Hospital, Inc.,

to protect the union's interests). 561 F.2d 427, 428-29 (mere fact that hospital was state-

licensed, regulated by the state health department, tax exempt,

The amended complaint alleges that plaintiff was improperly and empowered by the state to annex contiguous land for

disciplined when she was suspended, and later terminated, expansion was insufficient to find “state action” where state

from employment at River Park Towers. Plaintiff does not was not shown to have played any part in the formulation or

claim that she was suspended, expelled, or in any way implementation of procedures utilized in denying application

disciplined by her union, Local 32BJ. Plaintiff has not for staff privileges). Plaintiff's claims under the Fourteenth

alleged improper disciplinary action on the part of her “labor Amendment and 42 U.S.C. §§ 1983, 1985 are therefore

organization ... or by any officer thereof.” Plaintiff's claim dismissed.

under the LMRDA is dismissed.

Intentional Infliction of Emotional Distress

Constitutional Claims Plaintiff accuses Local 32BJ of intentional infliction of

Plaintiff alleges violations of her rights under the Fourteenth emotional distress. Plaintiff alleges that:

Amendment and 42 U.S.C. § 1983 and § 1985. Plaintiff

is required to show that she suffered a violation of a

[T]he defendant's negligent actions were

constitutional right and that the violation was committed

intended to inflict emotional stress and

under the color of state law. See U.S. Const. amend. XIV;

severe psychological agony upon the

42 U.S.C. §§ 1983, 1985. Private conduct can be considered

mind and spirit of the plaintiff ... [a]nd

state action where “[t]he State has so far insinuated itself into

the plaintiff did suffer mental anguish

a position of interdependence with [the private party] that it

and emotional harm upon learning that

must be recognized as a joint participant in the challenged

her union was actively collaborating with

activity.” Burton v. Wilmington Parking Auth., 365 U.S. 715,

the employer, R/Y [sic] Management,

725 (1961). When a defendant private entity is subject to

in failing to represent the legal and

government regulation, “the inquiry must be whether there

genuine rights and legitimate grievances

is a sufficiently close nexus between the State and the

of a union member, who had paid her

challenged action of the regulated entity so that the action

dues faithfully for a period of nine

of the latter may be fairly treated as that of the State itself.”

years, and had performed her work in

Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).

a satisfactory manner, but had insisted

Unless a private entity exercises powers that traditionally

that the employer and union respect the

belong to the state, the “sufficiently close nexus” test will

person and rights of a union member in

only be met when a state is deemed responsible for a private

good standing.

decision. Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982).

*4 The only nexus between River Park and the State of

New York is that the building defendants own and manage

(Am.Compl.¶ 16.)

is a recipient of federal financial assistance. It is also under

the regulatory control of the United States Department of

To support a claim for intentional infliction of emotional

Housing and Urban Development (HUD). Such a connection

distress, under New York law, the alleged conduct must be

is insufficient to satisfy the “sufficiently close nexus” test.

“so outrageous in character, and so extreme in degree, as to

See Neal v. Martinez, No. 01 CV. 11587, 2003 WL 260524

go beyond all possible bounds of decency, and to be regarded

(S.D.N.Y. Feb. 5, 2003). In Neal, plaintiff tenants sued

as atrocious, and utterly intolerable in a civilized society.”

the owners and managers of a federally-funded and HUD-

Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir.1985)

regulated housing development. After noting that federal

(quoting Fischer v. Maloney, 43 N.Y.2d, 553, 558, 402

funds and HUD regulation constituted the “only connection

N.Y.S.2d 991, 992-93, 373 N.E.2d 1215, 1217 (N.Y.1978).

Plaintiffs make between Defendants and any state actor,” the

Moreover, the extreme and outrageous conduct “must be

court held that plaintiffs failed “even to approach the close

(App.Div. 1st Dept.1999). New York courts have been “very plaintiff to establish a prima facie case under, Title VII of

the Civil Rights Act of 1964, the Equal Employment Act of

strict” in enforcing these elements. Martin, 762 F.2d at 220.

1972, and the New York State Human Rights Law, she must

demonstrate that: (1) she is a member of a protected class;

*5 Plaintiff alleges that Local 32BJ failed to adequately

(2) her job performance was satisfactory; (3) she suffered

represent her at her arbitration hearing. Inadequate

adverse employment action; and (4) the action occurred under

representation of a union member does not approach the

conditions giving rise to an inference of discrimination. See

threshold for behavior that courts have deemed “outrageous”

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

or “beyond all possible bounds of human decency.” See Gay

(1973); see also Demoret v. Zegarelli, 451 F.3d 140, 153

v. Carlson, 60 F.3d 83, 89 (2d Cir.1995) (an employee's

(2d. Cir.2006) (holding that courts analyze state and federal

allegations of conspiracy against his manager and fellow

employees “even if done maliciously, simply fails to measure discrimination claims under the framework of McDonnell

up to what is required to establish [intentional infliction Douglas ). Plaintiff claims that she made her initial complaint

of emotional distress]”). Plaintiff's intentional infliction of to the vice president of R/Y Management and to her union

emotional distress claim is dismissed. representative. Plaintiff states that when the “vice president

of the union was compelled to intervene,” plaintiff was

transferred from her desk job, and a few months later,

Claims against Arbitrator terminated. Plaintiff's conclusory allegations are devoid of

Plaintiff alleges misconduct by the arbitrator during the any factual assertion of conditions giving rise to an inference

arbitration hearing. Courts have uniformly immunized of discrimination. Plaintiff's Title VII claim is therefore

arbitrators from civil liability for all acts performed in their dismissed.

arbitral capacity. Austern v. Chi. Bd. of Options Exch.,

898 F.2d 882, 886 (2d Cir.1990) (holding that arbitrators *6 The Consolidated Omnibus Budget Reconciliation Act

in contractually agreed upon arbitration proceedings are (“COBRA”) provides that, if an employer maintains a group

absolutely immune from liability for all acts within the health plan, the plan must provide continuation coverage for

scope of the arbitral process). Plaintiff's allegations against employees who would lose coverage because of a qualifying

the arbitrator all relate to alleged misconduct in his arbitral event. The employer or sponsor's only further obligation

capacity. He is therefore immune from civil liability in this under COBRA is to notify the administrator of the qualifying

case. Plaintiff's claims against Bernard Young, arbitrator of event, after which the administrator must give notice under

the November 8, 2002 hearing, are dismissed. COBRA to the particular beneficiaries of their right to

continuation coverage. 29 U.S.C. § 1166. “An employer is

under no obligation flowing from COBRA to adopt a group

Remaining Claims health plan or to maintain one that is in existence.” Local 217

Plaintiff claims that defendants violated her rights under, v. MHM, Inc., 976 F.2d 805, 809. Plaintiff cannot maintain a

the Title VII of the Civil Rights Act of 1964, the Equal claim under COBRA against defendants. Plaintiff alleges that

Employment Act of 1972, the Consolidated Omnibus Budget “although [her] dues were always current, she was prevented

Reconciliation Act of 1986, and Section 296 of the New from using the medical services provided by the insurance

York State Human Rights Law. Each of these claims are coverage of [her union].” The complaint is devoid of any

unsupported by factual allegations in the complaint. “[W]hile factual allegation regarding a violation of the terms of any

the pleading standard is a liberal one, bald assertions and group health plan. This claim must also be dismissed.

conclusions of law will not suffice.” Leeds v. Meltz, 85 F.3d

51, 53 (2d. Cir.1996); see also De Jesus v. Sears. Roebuck and Defendants' motions to dismiss are granted. This case is

Co., 87 F.3d 65, 70 (2d. Cir.1996) (holding that a complaint dismissed in its entirety.

which consists of conclusory allegations unsupported by SO ORDERED:

factual assertions fails even the liberal standard of Rule 12(b)

(6)). Plaintiff's cannot allege facts to state a claim under these

laws.

All Citations

Plaintiff claims that defendants “negligently failed to take

Footnotes

1 Plaintiff filed an amended complaint with this Court on September 30, 2005.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2010 WL 1529473 defendants abuse other white women.

Only the Westlaw citation is currently available. I never ever think they wold do crime

United States District Court, W.D. Kentucky, towards me because I stay away from

at Bowling Green. every person living in Bowling Green

Towers just need a place to live.

Vivian Janet BOWMAN, Plaintiff

v.

Jennifer MITCHELL et al., Defendants. The Court recognizes that pro se pleadings are to be held

to a less stringent standard than formal pleadings drafted

Civil Action No. 1:10CV–5–M.

by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594,

|

30 L.Ed.2d 652 (1972). The duty to be less stringent with

April 14, 2010.

pro se complaints, however, “does not require [the Court] to

conjure up unpled allegations,” McDonald v. Hall, 610 F.2d

Attorneys and Law Firms

16, 19 (1st Cir.1979) (citation omitted), and the Court is not

Vivian Janet Bowman, Frankfort, KY, pro se. required to create a claim for a pro se plaintiff. Clark v. Nat'l

Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir.1975).

To command otherwise would require the “courts to explore

MEMORANDUM OPINION exhaustively all potential claims of a pro se plaintiff, [and]

would also transform the district court from its legitimate

JOSEPH H. McKINLEY, JR., District Judge. advisory role to the improper role of an advocate seeking out

the strongest arguments and most successful strategies for a

*1 Plaintiff, Vivian Janet Bowman, filed this pro se action party.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

against Jennifer Mitchell, Micki Piper, and Kathy Bays. Cir.1985). As a review of the complaint reveals that this Court

Bowman filed her complaint on a general complaint form. In lacks jurisdiction over the subject matter contained therein,

the section of the complaint asking her to state her grounds for the Court will dismiss the action.

filing this case in Federal Court, Bowman states: “Defendants

are guilty of violating my rights—U.S. Constitution Civil Rule 12(h)(3) of the Federal Rules of Civil Procedure

Rights as a citizen—in U.S. Government Housing and Urban provides, “Whenever it appears by suggestion of the parties

Development—Defendant Micki Piper violently attacked me. or otherwise that the court lacks jurisdiction of the subject

Micki Piper is a fat black woman with a hateful vulgar matter, the court shall dismiss the action.” It is axiomatic that

mouth.” Bowman indicates that she and all the defendants federal district courts are courts of limited jurisdiction, and

reside in the same apartment building in Bowling Green, their powers are enumerated in Article III of the Constitution.

Kentucky. She further explains her claim as follows: Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377,

114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Hudson v. Coleman,

347 F.3d 138, 141 (6th Cir.2003) ( “[I]t is well established that

On Thursday, December 31, 2009, federal courts are courts of limited jurisdiction, possessing

Micki Piper violently attacked me— only that power authorized by the Constitution and statute.”).

she gets too close to me she extends “Jurisdiction defines the contours of the authority of courts

her huge arms and hands towards me to hear and decide cases, and, in so doing, it dictates the

to strike me, Micki Piper is a large scope of the judiciary's influence.” Douglas v. E.G. Baldwin

black woman who works in the office & Assocs. Inc., 150 F.3d 604, 606 (6th Cir.1998). The party

with the other Defendants in Bowling that seeks to invoke a federal district court's jurisdiction

Green Towers, a HUD property. This bears the burden of establishing the court's authority to hear

is a malicious and violent 3 women the case. Kokkonen, 511 U.S. at 377. Moreover, federal

defendants who support each other in courts have an independent duty to determine whether they

their criminal act to violate me. These have jurisdiction and to “police the boundaries of their own

3 women abuse white women only. I jurisdiction.” Douglas, 150 F.3d at 607 (quoting Ebrahimi

Cir.1997)). programs act as private parties.”); Neal v. Martinez, No. 01

Cv. 11587(VM), 2003 U.S. Dist. LEXIS 1672 (S.D.N.Y. Feb.

*2 In the present case, Bowman has not met her burden of 4, 2003) (“Plaintiffs assert no concrete facts that the state-here

establishing federal question jurisdiction under 28 U.S.C. § the federal government through HUD-exercised any power or

1331. She alleges that her constitutional rights were violated influence over Defendants in any way to force or encourage

by Defendants whom she identifies as living in and working Defendants to act in a manner that violated Plaintiffs' rights

for a property that receives federal assistance from the United under § 1983.”); Hylton v. RY Mgmt., No. 05 CV 6710(GBD),

States Department of Housing and Urban Development 2006 U.S. Dist. LEXIS 51364, 2006 WL 2088196 (S.D.N.Y.

(HUD). Because Plaintiff references civil rights, the Court July 25, 2006) (same). Thus, Bowman cannot maintain a §

believes that she may be attempting to bring a claim under 1983 claim against Defendants because they are not state

42 U.S.C. § 1983.” “Section 1983 is not itself a source of actors.

substantive rights.” Albright v. Oliver, 510 U.S. 266, 271, 114

S.Ct. 807, 127 L.Ed.2d 114 (1994). In order to recover under Additionally, Bowman fails to establish diversity jurisdiction

§ 1983, a plaintiff must show the deprivation of a federal right as there is not complete diversity of citizenship. See 28 U.S.C.

through conduct which is “fairly attributable to the State.” § 1332. To the contrary, Bowman alleges that she and all of

the Defendants are Kentucky citizens.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982). That is, “the party charged with

the deprivation must be a person who ... is a state official, Accordingly, because Bowman has failed to establish that

[or who] has acted together with or has obtained significant this Court has subject-matter jurisdiction over this action, the

aid from state officials, or [whose] conduct is otherwise Court will dismiss this action by separate Order.

chargeable to the State.” Id. The fact that Defendants work

for and live in a property that is regulated by HUD is

All Citations

not enough to transform them into state actors. See Miller

v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Not Reported in F.Supp.2d, 2010 WL 1529473

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2023 WL 7017105 plaintiff],” and one or multiple of the defendants denied that

Only the Westlaw citation is currently available. “anything was left in [the plaintiff] by BOP from a [prior]

United States District Court, E.D. New York. surgery at Muncey Regional Medical Center” in February

2008. (Id.)

Kevin RAZZOLI, Plaintiff,

v. The complaint seeks $220 million in damages for the loss of

RICHMOND UNIVERSITY MED. CENTER, the “right to have children,” “[intentional] gross negligence,”

Dr. Douglas Cohen, Dr. Ami Raval, Med “falsification of documents that cause cover up ... of acts of

genocide,” “loss of consortium [and] procreation of children,”

Tronics Devices, Unknown BOP Staff,

“pain [and] suffering,” “endangering the life of a patient,” and

Unknown Medical Staff BOP, Defendants.

“denial of births to an Italian American/Roman Catholic.” (Id.

23-CV-6697 (AMD) (LB) at 2.)

|

Signed October 25, 2023

LEGAL STANDARD

Attorneys and Law Firms

Because the plaintiff is proceeding pro se, the Court

Kevin Razzoli, Staten Island, NY, Pro Se.

construes his submissions liberally and interprets them “to

raise the strongest arguments that they suggest.” Fowlkes

v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015)

ORDER (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

477 (2d Cir. 2006)). A district court may dismiss a pro se

ANN M. DONNELLY, United States District Judge:

action sua sponte, that is, on its own, if the action “(i) is

*1 On September 12, 2023, the pro se plaintiff Kevin frivolous or malicious; (ii) fails to state a claim on which

Razzoli brought this action against the Richmond University relief may be granted; or seeks monetary relief against a

Medical Center, Dr. Douglas Cohen, Dr. Ami Raval, Med defendant who is immune from such relief.” 28 U.S.C. §

Tronics Devices and unknown Bureau of Prisons (“BOP”) 1915(e)(2)(B). “An action is ‘frivolous’ when (1) the factual

staff members. (ECF No. 1.) His application to proceed in contentions are clearly baseless, such as when allegations are

forma pauperis (“IFP”) is granted. (ECF No. 8.) As explained the product of delusion or fantasy; or (2) the claim is based on

below, the action is dismissed in part with prejudice and in an indisputably meritless legal theory,” i.e., “the claim lacks

part without prejudice. an arguable basis in law” or “a dispositive defense clearly

exists on the face of the complaint.” Livingston v. Adirondack

Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations

omitted).

BACKGROUND

*2 A district court may also dismiss a pro se action sua

The complaint, entitled “Federal Malpractice Suit,” appears

sponte if the court does not have subject matter jurisdiction

to allege medical malpractice or negligence claims, civil

over the matter. Fed. R. Civ. P. 12(h)(3). “[F]ailure of subject

rights claims under 42 U.S.C. § 1983, civil RICO claims

matter jurisdiction is not waivable and may be raised at

under 18 U.S.C. § 1961 et seq., and Privacy Act claims

any time by a party or by the court sua sponte. If subject

under 5 U.S.C. § 552a against the Richmond University

matter jurisdiction is lacking, the action must be dismissed.”

Medical Center (“RUMC”), two individual doctors, a medical

Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697,

device company, and “Unknown BOP Staff.” (ECF No. 1

700–01 (2d Cir. 2000). Federal subject matter jurisdiction

at 1–2.)1 The plaintiff alleges that he is “disable[d]” due

is available only when a “federal question” is presented, 28

to [the] negligence [of the d]efendants,” apparently resulting U.S.C. § 1331, or when the plaintiffs and defendants are of

from surgeries the defendant received in February 2008 diverse citizenship and the amount in controversy exceeds

and September 2020. (Id. at 4.)2 Specifically, the “ ‘neuro $75,000, 28 U.S.C. § 1332(a). If a liberal reading of the

surgeons’ who conducted surgery at RUMC in September[ ] complaint “gives any indication that a valid claim might be

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). 128423 at *35 (E.D.N.Y. Dec. 6, 2010)). Here, the parties

are not diverse; the plaintiff and the defendants RUMC, the

individual doctors, and Med Tronics Devices are all citizens

of New York. Therefore, diversity jurisdiction does not exist.

DISCUSSION

See 28 U.S.C. § 1332(a)(1). Accordingly, these claims are

I. Medical Malpractice/Negligence Claims dismissed for lack of subject matter jurisdiction.

The plaintiff refers to his complaint as a “federal malpractice

suit” (ECF No. 1 at 1) and appears to allege that doctors at The plaintiff's analogous claim against unidentified BOP

RUMC and BOP doctors at Muncey Regional Medical Center officials must be dismissed because “it is clear on the face of

committed malpractice when they did not find foreign objects the complaint that the statute of limitations has run.” Mosdos

that he believes were left inside his body after two surgeries. Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F. Supp. 3d

(Id. at 4.) Reading the pleadings liberally, the Court interprets 191, 209 (S.D.N.Y. 2014) (citation omitted). New York law

the complaint to assert a claim of medical malpractice or gives a plaintiff two years and six months to bring a medical

negligence. “In New York, ‘[a]n action to recover for personal malpractice claim and three years to bring a negligence claim.

injuries ... against a medical practitioner or a medical facility Idiakheua v. N.Y. State Dep't of Corr. & Cmty. Supervision,

or hospital may be based either on negligence principles or No. 20-CV-4169, 2022 U.S. Dist. LEXIS 190205, at *50

on the more particularized medical malpractice standard.” (E.D.N.Y. Oct. 17, 2022) (citing N.Y. C.P.L.R. §§ 214(5),

Kushner v. Schervier Nursing Care Ctr., No. 05-CV-5297, 214-a). The complaint appears to allege that the plaintiff had

2011 U.S. Dist. LEXIS 174391, at *9–10 (S.D.N.Y. Mar. 23, surgery in a BOP facility in February 2008. (ECF No. 1 at 4.)

2011) (quoting Friedmann v. N.Y. Hosp.-Cornell Med. Ctr., The plaintiff did not file the complaint until September 12,

65 A.D.3d 850, 850–51, 884 N.Y.S.2d 733 (1st Dep't 2009)). 2023 (see id. at 1); therefore, these claims are time-barred and

The distinction between these kinds of claims “is a subtle one, must be dismissed.

for medical malpractice is but a species of negligence and ‘no

rigid analytical line separates the two.’ ” Weiner v. Lenox Hill

II. Civil Rights Claims

Hosp., 88 N.Y.2d 784, 787, 650 N.Y.S.2d 629, 673 N.E.2d

*3 The plaintiff brings a claim, seemingly against all

914 (1996) (quoting Scott v. Uljanov, 74 N.Y.2d 673, 674, 543

defendants, under 42 U.S.C. § 1983. To prevail on a Section

N.Y.S.2d 369, 541 N.E.2d 398 (1989)). “A claim sounds in

1983 claim, the plaintiff must allege that the conduct at issue

medical malpractice when the challenged conduct ‘constitutes

was “committed by a person acting under color of state law”

medical treatment or bears a substantial relationship to the

and “deprived a person of rights, privileges or immunities

rendition of medical treatment by a licensed physician,’ ”

secured by the Constitution or laws of the United States.”

Sha v. Mem'l Sloan-Kettering Cancer Ctr., No. 99-CV-3233,

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting

2000 U.S. Dist. LEXIS 17297, at *2 (S.D.N.Y. Nov. 29, 2000)

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section

(quoting Weiner, 88 N.Y.2d at 788, 650 N.Y.S.2d 629, 673

1983 does not extend to “private conduct” caused by private

N.E.2d 914), and sounds in negligence when “the provider

individuals or organizations, “no matter how discriminatory

failed ‘to fulfill a different duty,’ ” Gjini v. United States, No.

or wrongful;” rather, the statute applies only to state actors,

16-CV-3707, 2019 U.S. Dist. LEXIS 20978, at *25 (S.D.N.Y.

and to private actors performing conduct that is “fairly

Feb. 8, 2019) (quoting Dispenzieri v. Hillside Psychiatric

attributable to the state” or engaging in “public functions.”

Hosp., 283 A.D.2d 389, 389, 724 N.Y.S.2d 203 (2d Dep't

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 51, 55,

2001)).

119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (citation omitted).

The Court need not decide whether the plaintiff is bringing

The plaintiff has not alleged that RUMC, the two individual

medical malpractice or negligence claims because the

doctors or Med Tronics Devices are state actors. Nor has

plaintiff does not establish a basis for this Court's jurisdiction

the plaintiff alleged that the defendants’ conduct “may

under either theory. Both claims “arise under state law, and a

be fairly treated as that of the State itself” or that these

federal court generally will not have original jurisdiction over

defendants “exercised powers that are ‘traditionally the

the claims unless complete diversity exists.” Joseph v. JRF

exclusive prerogative of the state.’ ” Blum v. Yaretsky, 457

Income Tax Bus. Servs., No. 21-CV-3869, 2021 U.S. Dist.

U.S. 991, 1004–05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)

LEXIS 150150, at *13 (E.D.N.Y. Aug. 10, 2021) (quoting

state action may not be premised solely on the private RICO claims against any defendant, and the claims must be

entity's creation, funding, licensing, or regulation by the dismissed.

government.”); Rendell-Baker v. Kohn, 457 U.S. 830, 841,

102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (“Acts of ... private *4 To the extent that the plaintiff's RICO claims against the

contractors do not become acts of the government by reason BOP officials involve the February 2008 surgery, dismissal is

of their significant or even total engagement in performing required for the additional reason that the statute of limitations

public contracts.”); Jackson v. Metro. Edison Co., 419 U.S. has run. Civil RICO claims must be brought within four years

345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (“The mere of “when the plaintiff discovers or should have discovered the

fact that a business is subject to state regulation does not by RICO injury.” 421-A Tenants Ass'n v. 125 Court St. LLC, 760

itself convert its action into that of the State.”). Therefore, the F. App'x 44, 48–49 (2d Cir. 2019) (quoting In re Merrill Lynch

plaintiff does not state Section 1983 claims against RUMC, Ltd. P'ships Litig., 154 F.3d 56, 58 (2d Cir. 1998)). As with the

the two individual doctors or Med Tronics Devices, and the civil rights claims, the plaintiff does not allege when he knew

claims must be dismissed. See 28 U.S.C. § 1915(e)(2)(ii). or had reason to know of the injury; he alleges only that the

surgery took place in 2008. Without more specific allegations,

The plaintiff's Section 1983 claims against the unidentified these claims are time-barred, and must be dismissed.

BOP officials must also be dismissed because the statute does

not extend to conduct by federal officials. United States v.

Acosta, 502 F.3d 54, 60 (2d Cir. 2007). These claims are IV. Torture Claims

also barred by the applicable statute of limitations: a plaintiff 18 U.S.C. § 2340A makes it a crime to “commit[ ] or

bringing a Section 1983 claim in New York State federal court attempt[ ] to commit torture,” or to “conspire[ ] to commit”

must do so within three years of the date “when the plaintiff torture, “outside the United States,” and gives federal courts

knows or has reason to know of the injury which is the basis jurisdiction “over [that] activity.” 18 U.S.C. § 2340A(a)-(c).

of his action.” Barnes v. City of New York, 68 F.4th 123, 127 The specific statutory provision that the complaint cites, §

(2d Cir. 2023) (citations omitted). The plaintiff does not allege 2340(1), defines torture as “an act committed by a person

when he knew or had reason to know of the injury; at most, acting under the color of law specifically intended to inflict

he alleges that BOP officials violated his constitutional rights severe physical or mental pain or suffering (other than pain or

in connection with a surgery that took place in 2008. Without suffering incidental to lawful sanctions) upon another person

more specific allegations, these claims are time-barred, and within his custody or physical control.” (See ECF No. 1.) The

must be dismissed. statute does not provide a private right of action to enforce

the law “in any civil proceeding,” 18 U.S.C. §§ 2340, 2340B,

so the Court must dismiss any such claims. See 28 U.S.C. §

III. RICO Claims 1915(e)(2)(B)(ii); Sivokonev v. Cuomo, 447 F. Supp. 3d 58,

Section 1962(c) of the Racketeer Influenced and Corrupt 63 (W.D.N.Y. 2020).

Organizations Act (“RICO”) makes it unlawful to conduct

“an enterprise's affairs through a pattern of racketeering

activity” and provides a private right of action to any person V. Privacy Act Claims

injured “in business or property” due to such a violation.” 18 The plaintiff also cites the Privacy Act of 1974, 5 U.S.C. §

U.S.C. §§ 1962(c), 1964(c). A plaintiff bringing a civil RICO 552a, which allows individuals to request access to federal

action must plead two or more predicate acts of “racketeering agency records about themselves. Devine v. United States,

activity,” which may be any of an enumerated list of “act[s] 202 F.3d 547, 550 (2d Cir. 2000). (See ECF No. 1 at 1, 2.)

or threat[s]” as defined by the statute. See id. § 1961(1), (5). The Privacy Act also allows an individual to bring a civil

suit against a federal agency that “fails to comply” with

The complaint cites the RICO statute (ECF No. 1 at 2), the statute such that the individual suffers an adverse effect.

but does not allege any predicate acts that may constitute a Devine, 202 F.3d at 550–51 (quoting 5 U.S.C. § 552a(g)(1)

“pattern of racketeering activity:” medical malpractice and (D)). The statute does not permit such claims against a private

negligence are not listed in the statute as predicate acts. See entity, Pennyfeather v. Tessler, 431 F.3d 54, 56 (2d Cir. 2005)

18 U.S.C. § 1961(1). The complaint also cites 18 U.S.C. (citation omitted), or against individual federal employees,

§ 2340(1), a criminal statute that defines torture, but that Mamarella v. Cnty. of Westchester, 898 F. Supp. 236, 238

[statute],” not individuals). Therefore, the plaintiff's claims a claim for a civil violation of section 1962(c),” i.e., “civil

under 5 U.S.C. § 552a are dismissed against all defendants for RICO,” “a plaintiff must show that he was injured by

defendants’ (1) conduct (2) of an enterprise (3) through a

failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).

pattern (4) of racketeering activity.” Env. Servs. v. Recycle

Green Servs., 7 F. Supp. 3d 260, 271 (E.D.N.Y. 2014)

VI. Leave to Amend (quoting Kalimantano GmbH v. Motion in Time, Inc., 939

Though the plaintiff has not requested leave to amend his F. Supp. 2d 392, 404 (S.D.N.Y. 2013)). If the plaintiff's

complaint, the Court has considered whether he should be RICO claim is “predicated on acts of fraud,” it must

given an opportunity to do so. Under Rule 15(a) of the Federal satisfy the “heightened pleading requirement set forth in

Rules of Civil Procedure, the “court should freely give leave Rule 9(b)” of the Federal Rules of Civil Procedure. Id.

[to amend] when justice so requires.” Pursuant to this liberal at 271–72. Rule 9(b) requires the plaintiff to plead “with

standard, I grant the plaintiff leave to amend his complaint as particularity;” specifically, the complaint must “(1) specify

to the civil RICO claims. the statements, oral or written, that the plaintiff contends

were fraudulent, either as misrepresentations or containing

The Court declines to grant the plaintiff leave to amend fraudulent omissions; (2) identify the speaker or the writer;

his complaint as to (i) the medical malpractice/negligence (3) state where, when and to whom the statements were made;

claims, (ii) the civil rights claims, (iii) the torture claims, and (4) explain why the statements were fraudulent.” Id. at

and (iv) the Privacy Act claims because “amendment would 271 (quoting SEC v. Lee, 720 F. Supp. 2d 305, 338 (S.D.N.Y.

be futile.” Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 2010)). The plaintiff is also cautioned that he must allege

633 (2d Cir. 2016); Lamb v. Cuomo, 698 F. App'x 1, 2 (2d facts that are personal to him. If applicable, the plaintiff must

Cir. 2017). As to the medical malpractice/negligence claims provide facts to show why his claims are not time-barred or

against RUMC, the individual doctors and Med Tronics provide reasons for his failure to timely file the claim(s).

Devices, “there is no basis to invoke this Court's subject-

matter jurisdiction” because the parties are not diverse. If the plaintiff decides to file an amended complaint, it must

Gross v. Intratek Comput. Inc., No. 22-CV-7440, 2023 U.S. be captioned “Amended Complaint” and bear the same docket

Dist. LEXIS 4356, at *7 (E.D.N.Y. Jan. 10, 2023) (denying number as this order: 23-CV-6697 (AMD) (LB). The plaintiff

leave to amend where parties are not diverse). As to the is advised that the amended complaint completely replaces

plaintiff's medical malpractice/negligence claim against the the original complaint. That is, the amended complaint must

BOP officials, no new allegations can revive the claim stand on its own without reference to the original complaint.

because “dismissal is not based upon pleading deficiencies, All further proceedings shall be stayed for 30 days. If the

but rather the applicable statute of limitations.” Apostolidis v. plaintiff fails to file an amended complaint within the time

JPMorgan Chase & Co., No. 11-CV-5664, 2012 U.S. Dist. allowed or fails to show good cause for an extension to file

LEXIS 157733, at *23 (E.D.N.Y. Nov. 2, 2012). As to the civil the amended complaint, the Clerk of Court shall be directed

rights, torture, and Privacy Act claims, amendment is futile to enter judgment and close this case.

because these claims are not available against the defendants.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that

any appeal from this Order would not be taken in good faith.

Therefore, in forma pauperis status is denied for purpose of an

CONCLUSION

appeal. See Coppedge v. United States, 369 U.S. 438, 444-45,

*5 For these reasons, the plaintiff's RICO claims are 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

dismissed without prejudice. The plaintiff's remaining claims

are dismissed with prejudice to filing in federal court;

SO ORDERED.

however, any potential state law claims are dismissed without

prejudice to filing in state court. All Citations

In the amended complaint, the plaintiff must provide the date, Slip Copy, 2023 WL 7017105

location and a short, plain statement of the relevant facts

Footnotes

1 The pages of the complaint are not consecutively paginated. The Court refers to the page numbers assigned

by the Electronic Case Filing (“ECF”) System.

2 The plaintiff uses varying capitalization throughout the complaint. The Court has modified the quotations from

the complaint to employ standard capitalization.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

1997 WL 599355 amended complaint alleging the specific acts committed by

Only the Westlaw citation is currently available. the individuals named as defendants which Brown claimed

United States District Court, N.D. New York. violated his constitutional rights. Brown filed an amended

complaint on March 21, 1996. In his amended complaint,

Kenneth BROWN, Plaintiff, Brown alleged that defendants violated his rights under the

v. Eighth and Fourteenth Amendments by failing to process

Andrew PETERS, Warden, Watertown Correctional properly his interstate compact paperwork, resulting in Brown

Facility; Joseph Williams, Warden, Lincoln Work– being imprisoned pursuant to a parole hold when in fact

he had never violated the conditions of his parole. For a

Release Center; Francis J. Herman, Senior Parole

more complete statement of Brown's claims, see his amended

Officer Interstate Bureau; T. Stanford, Senior Parole

complaint. Dkt. No. 5.

Officer; Deborah Stewart, Parole Officer; John Doe #

1, Parole Agent, Watertown Correctional Facility; John On August 5, 1996, defendants Peters and Williams made

Doe # 2, Parole Agent, Lincoln Work Release Center; a motion to dismiss for failure to state a claim pursuant to

Susan Bishop, Director of Interstate Compact, South Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On

Carolina; Cecil Magee, Parole Officer, South Carolina; August 19, 1996, defendants Bishop, Magee, Barton, and

Frank Barton, Parole Officer, South Carolina; John McMahan made a motion to dismiss the complaint against

McMahan, Parole Officer, South Carolina, Defendants. them or, in the alternative, for summary judgment. Dkt. No.

20. On October 17, 1996, defendants Herman, Stewart, and

No. Civ.A. 95CV1641RSPDS. Stanford made a motion to dismiss for failure to state a

| claim. Dkt. No 34. On April 17, 1996, Magistrate Judge

Sept. 22, 1997. Scanlon recommended that all defendants' motions to dismiss

be granted and that the complaint be dismissed. Dkt. No. 50.

Attorneys and Law Firms

On June 9, 1997, Brown filed objections to the

Kenneth Brown, State Court Institute–Greene, Waynesburg,

magistrate judge's report-recommendation, having been

PA, plaintiff, pro se.

granted additional time in which to do so. Dkt. No. 52. In

Dennis C. Vacco, New York State Attorney General, The addition, Brown filed on June 9, 1997, a motion for leave to

Capitol Albany, NY, for defendants Peters, Herman Stewart, file a second amended complaint and a copy of his proposed

Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant amended complaint. Dkt. No. 53. I turn first to the last motion

Attorney General, Carl N. Lundberg, Chief Legal Counsel, filed, Brown's motion for leave to amend his complaint a

South Carolina Department of Probation, Columbia, SC, for second time.

defendants Bishop, Magee, Barton, McMahan, and Stanford,

Carl N. Lundberg, of Counsel. Brown seeks to file a second amended complaint “setting

forth in detail the personal involvement of each defendant

and how their acts of commission and omission served to

DECISION AND ORDER deprive plaintiff of Constitutionally secured rights.” Dkt. No.

53. The district court has discretion whether to grant leave

POOLER, J. to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,

131 (2d Cir.1993). In exercising that discretion, the court

*1 The above matter comes to me following a Report– should freely grant leave to amend when justice so requires.

Recommendation by Magistrate Judge Daniel Scanlon, Jr., Fed.R.Civ.P. 15(a). However, the court need not grant leave

duly filed on April 17, 1997. Following ten days from the to amend where it appears that amendment would prove to be

service thereof, the Clerk has sent me the entire file, including unproductive or futile. Ruffolo, 987 F.2d at 131.

any and all objections filed by the parties herein.

Here, Brown moved to amend his complaint to add additional

Plaintiff Kenneth Brown commenced this Section 1983 civil allegations against the named defendants. However, the

rights action on November 17, 1995. On February 12, additional allegations fail to cure the deficiency which

the absence of defendants' personal involvement in a to which specific, written objection has been made.” Brown's

constitutional deprivation. Section 1983 imposes liability objections fail to address directly any of the analysis.

upon an individual only when personal involvement of that Brown's objections state (1) that he has been deprived of

individual subjects a person to deprivation of a federal right. his constitutional rights; (2) that he has stated a cause of

See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. action; (3) that the court wrongly refused to appoint an

2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective attorney for him and wrongly stayed discovery pending the

if it fails to allege personal involvement sufficient to establish outcome of these motions; (4) that he seeks to file an amended

that a supervisor was “directly and personally responsible for complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)

the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward, (6) motion; (6) that he disagrees with the magistrate judge's

814 F.2d 883, 886 (2d Cir.1987). recommendation to grant defendants' motions because the

allegations in his complaint, which he repeats, show that his

*2 Brown's proposed amended complaint alleges in rights were violated; and (7) the text of the Fourteenth and

conclusory fashion that defendants acted “in a grossly Eighth Amendments.

negligent and concerted manner which breached their duties

owed to Plaintiff and is the proximate cause of [the violation Even affording the objections the liberal reading required

of plaintiff's constitutional rights].” Proposed Am. Compl., for pro se pleadings, I find that these objections fail to

at 3. Brown continues in the same vein, stating that state any basis whatsoever, much less a specific one, for

defendants owed duties to plaintiff to carry out their jobs in a the court not to adopt the magistrate judge's rulings. They

professional manner and they failed to carry out those duties simply re-state the relief sought and the facts on which Brown

appropriately. The complaint states that defendants held grounds his complaint and conclude that the magistrate

specific responsibilities, such as checking for outstanding judge's conclusions are wrong. When the parties make only

warrants, which if performed properly should have alerted frivolous, conclusive, or general objections, the court reviews

them to a problem. However, nowhere does the complaint the report-recommendation for clear error. See Camardo v.

set forth allegations that these defendants either participated General Motors Hourly–Rate Employees Pension Plan, 806

directly in any constitutional infraction or that they were even F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider

aware of such an infraction. The proposed amended complaint objections which are frivolous, conclusive, or general and

merely alleges that these defendants failed in performing their constitute a rehashing of the same arguments and positions

supervisory and ministerial functions. “These bare assertions taken in original pleadings); Chambrier v. Leonardo, 1991

do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis, WL 44838, *1 (S.D.N.Y.) (restatement of allegations already

1988 WL 78306, *2 (S.D.N.Y.). before the court and assertion that valid constitutional claim

exists insufficient to form specific objections); Schoolfield

This plaintiff previously has had the opportunity to amend his v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)

complaint for the same reason asserted here, to allege personal (objections stating that magistrate judge's decisions are

involvement on the part of defendants. Brown's first amended wrong and unjust, and restating relief sought and facts

complaint failed to accomplish that task, and it appears that upon which complaint grounded, are conclusory and do not

even if allowed to amend again Brown would be unable to form specific basis for not adopting report-recommendation);

make the requisite allegations with sufficient specificity to Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general

sustain his complaint. Consequently, I find that amendment objection that report does not address violation of petitioner's

would be futile, and I deny Brown's motion for leave to amend constitutional rights is a general plea that report not be

his complaint. adopted and cannot be treated as objection within the meaning

of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.

I turn now to the magistrate judge's report-recommendation denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169

and defendants' motions. The magistrate judge recommends (U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1

that I grant defendants' motions and dismiss the complaint (1997) (when objections fail to address analysis directly, court

as to all defendants. The report-recommendation clearly reviews report-recommendation for clear error); Fed.R.Civ.P.

describes the grounds on which the magistrate judge 72(b), Advisory Comm. Note (when no specific, written

recommends dismissal as to each defendant. Fed.R.Civ.P. objections filed, “court need only satisfy itself that there is

72(b) requires the district judge to make a de novo

recommendation”). Correctional Facility in Watertown, New York. He applied

for an interstate compact because he wanted to return to

*3 Because Brown fails to make specific objections or South Carolina to live with his common law wife, Pamela

provide any basis for his general objections, I review the Reid. During the application process, he was interviewed by

report-recommendation for clear error. After careful review, the facility's parole officer, identified only as defendant John

I conclude that the magistrate judge's report-recommendation Doe # 1. After signing the necessary papers, his application

is well-reasoned and is not clearly erroneous.1 The was forwarded to defendant Andrew Peters, the facility's

magistrate judge employed the proper standard, accurately superintendent, who reviewed, signed and forwarded the

recited the facts, and reasonably applied the law to those facts. papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;

Consequently, I adopt the report-recommendation. Exs. A, B.

On or about January 15, 1992, while his compact was waiting

for review at the Interstate Bureau, plaintiff was approved for

CONCLUSION work release and sent to the Lincoln Work Release Center

in New York City. While at the center, plaintiff spoke to a

Because plaintiff's proposed amendment demonstrates that

parole officer, defendant John Doe # 2, and told him that

amendment would be futile, I deny plaintiff's motion for leave

he was seeking a compact that would return him to South

to amend his complaint. I approve the magistrate judge's

Carolina upon his conditional release. Plaintiff claims the

recommendation and grant defendants' motions to dismiss.

parole officer told him that he would handle the necessary

Plaintiff's complaint is dismissed in its entirety.

paperwork, although the officer had had no experience with

an interstate compact. Amend. Compl. at ¶¶ 3, 4.

IT IS SO ORDERED.

*4 Plaintiff, meanwhile, asked Reid whether any officials

had contacted her in South Carolina regarding his prospective

ORDER and REPORT–RECOMMENDATION residence in that state. Upon discovering no one had contacted

her, plaintiff asked a lawyer he knew, Navron Ponds, to

This matter was referred to the undersigned for report and

inquire as to his compact status. In March, 1992, the

recommendation by the Hon. Rosemary S. Pooler, United

lawyer spoke with defendant Susan Bishop, who is the

States District Judge, by Standing Order dated November

director of the interstate compact program in South Carolina.

12, 1986. Currently before this Court are a number of

Bishop allegedly told Ponds that plaintiff “was disapproved

motions. Defendants Peters and Williams have filed a motion

because there was a discrepancy about approving plaintiff['s]

to dismiss (dkt.13); defendants Bishop, Magee, Barton and

compact.” The “discrepancy” was the fact that plaintiff owed

McMahan have filed a motion for summary judgment, or in

the state of South Carolina eighty-six days of confinement

the alternative to dismiss (dkt.20); and defendants Herman,

from a previous sentence. Plaintiff claims Bishop told Ponds

Stewart and Stanford also have filed a motion to dismiss

to contact defendants Cecil Magee and Frank Barton, who

(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,

worked for the South Carolina Parole Department. Sometime

33, 38). Defendants Bishop, Magee and McMahan have filed

in March, 1992, Ponds made some calls to Barton and Magee.

a motion to stay discovery (dkt.41) and plaintiff has filed a

A verbal agreement was reached, and plaintiff, upon speaking

motion to extend time (dkt.44) in which to file opposition to

with Barton and Magee was told that his compact had been

the latter motion for a stay of discovery.

approved. He also was told that he should report to the South

Carolina Department of Parole upon being released. Amend.

The Court addresses these issues seriatim.

Compl. at ¶¶ 5–7.

Prior to leaving the Lincoln Work Release Center, plaintiff

BACKGROUND processed paperwork related to his interstate compact. His

paperwork was sent by Doe # 2 to defendant Joseph Williams,

Plaintiff's amended complaint, which he has brought pursuant the superintendent of the center. Williams reviewed, signed

to 42 U.S.C. § 1983, alleges the following facts. In and returned the paperwork to plaintiff. On May 1, 1992,

Carolina. Three days later, he entered a South Carolina parole DISCUSSION

office and promptly was arrested because of the eighty-

six days of confinement that he owed the state. Plaintiff's A. Motion to Dismiss by Williams and Peters.

paperwork was given to defendant John McMahan, a parole Williams and Peters have filed a motion to dismiss plaintiff's

officer. Plaintiff claims that McMahan never returned this complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds

paperwork to him. On May 20, 1992, the state of South that it fails to state a claim upon which relief may be

Carolina revoked plaintiff's parole and plaintiff was returned granted. In a Rule 12(b)(6) motion, all factual allegations

to prison to serve the eighty-six days that he owed. When he in the complaint must be taken and construed in plaintiff's

asked McMahan what would happen to his one year of parole favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d

from New York, the officer allegedly told him that his New Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).

York parole would run concurrently with his South Carolina The Court's role is not to assess whether plaintiffs have

parole, and that when he finished his South Carolina parole, raised questions of fact or demonstrated an entitlement

he would not owe any parole whatsoever. Plaintiff served the to a judgment as a matter of law, as in a motion made

eighty-six days he owed and was released on July 31, 1992. pursuant to FED.R.CIV.P. 56 for summary judgment, but

Amend. Compl. at ¶¶ 8–10. rather to determine whether plaintiff's complaint sufficiently

alleges all of the necessary legal elements to state a claim

In February, 1993, plaintiff was arrested on robbery charges under the law. See Christopher v. Laidlaw Transit, Inc.

in South Carolina. The charges ultimately were dropped, 899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.

but he apparently encountered some difficulties regarding New York City Transit Authority, 941 F.2d 119, 124 (2d

this arrest as a result of a parole hold that New York state Cir.1991)). Factual allegations in brief or memoranda may not

had placed upon him. Bishop's office told him that it had be considered. Fonte v. Board of Managers of Continental

nothing to do with his parole hold and that any problem that Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The

he had was between him and the state of New York. He Court now turns to the issues presented.

talked to authorities in Albany, New York regarding the parole

hold, but was not successful in his efforts to have the hold Personal involvement of defendants in alleged constitutional

removed. On September 30, 1993, after had been extradited deprivations is a prerequisite to an award of damages under

to New York as a fugitive from justice, plaintiff was given a § 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).

preliminary hearing at Riker's Island, New York. The hearing As superintendents at New York State Correctional facilities,

officer found no probable cause that plaintiff had violated any Williams and Peter may be found personally involved in the

condition of parole. He was released. Amend. Compl. at ¶¶ alleged deprivation of plaintiff's constitutionally protected

11–14; Exs. C–J. rights by a showing that they: (1) directly participated in the

infraction; (2) knew of the infraction, but failed to remedy

*5 Plaintiff claims that he would not have suffered hardships the wrong; (3) created or continued a policy or custom under

if his interstate compact had been handled correctly. He which unconstitutional practices occurred; or (4) were grossly

alleges that defendant Deborah Stewart failed to follow up negligent in managing subordinates who caused unlawful

and see whether plaintiff had arrived in South Carolina. If she conditions or events. Id., (quoting Williams v. Smith, 781

had, he argues, she would have discovered that he had been F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also

arrested upon his arrival. He alleges that defendant Francis may be imposed against Williams or Peters with a showing

Herman, a parole officer at the Interstate Bureau failed to of gross negligence or deliberate indifference to plaintiff's

do his job by not investigating plaintiff's violation reports. constitutional rights. Id. Absent some personal involvement

Amend. Compl. at ¶¶ 15–17; Exs. F–I. by Williams or Peters in the allegedly constitutionally infirm

conduct of their subordinates, neither can be held liable under

Plaintiff asserts that the foregoing amounts violations of his § 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).

Eighth and Fourteenth Amendment rights, wherefore he both

compensatory and declaratory relief. *6 Plaintiff has not provided any evidence linking either

Williams or Peters to his alleged constitutional deprivations.

All that plaintiff has alleged is that Williams and Peters,

as superintendents, have reviewed and signed paperwork

that pro se complaints are held to “less stringent standards alleging that he was the appointed Senior Parole Officer at

than formal pleadings drafted by lawyers” for the purpose of a plaintiff's September 30, 1993 revocation hearing at Riker's

motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404 Island, plaintiff does not detail how Stanford violated his

U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), constitutional rights. Absent some personal involvement by

plaintiff has not explained how the ministerial conduct of Stanford in the allegedly constitutionally infirm conduct of

these two defendants was violative of the Constitution. Their his subordinates, he cannot be held liable under § 1983. Gill,

motion to dimiss should be granted. 824 F.2d at 196.

*7 Accordingly, the Court finds that Stanford, Stewart and

B. Motion for Summary Judgment or to Dismiss by Bishop, Herman's motion to dismiss should be granted.

Magee, Barton and McMahan.

Bishop, Magee, Barton and McMahan have filed a motion

for summary judgment, or in the alternative a motion to D. Plaintiff's “John Doe” Claims.

dismiss. The Court will treat their motion as a motion to In so far as neither John Doe # 1 nor John Doe # 2 have been

dismiss. “[C]omplaints relying on the civil rights statutes are identified and served in this matter, the Court does not have

insufficient unless they contain some specific allegations of jurisdiction over these parties and does not reach the merits

fact indicating a deprivation of rights, instead of a litany of plaintiff's claims against them.

of general conclusions that shock but have no meaning.”

Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff

has not alleged specifically how the conduct of these four E. Discovery Motions.

defendants infringed upon his constitutional rights. In his Defendants Bishop, Magee and McMahan have filed a motion

amended complaint, he contends that defendants violated the to stay discovery until the Court has made a ruling on their

Constitution by “continuously breaching [[[their] duty” to motion to dismiss. Plaintiff has filed a motion to extend

him. This language underscores the defect with the complaint: the time in which he may file opposition to defendants'

if it alleges anything at all, it alleges that defendants were motion. Plaintiff, however, has filed his opposing response

negligent in handling plaintiff's interstate compact and parole. (dkt.47), therefore his instant discovery motion is denied as

To state a cognizable § 1983 claim, the prisoner must allege moot. In that the Court recommends granting defendants'

actions or omissions sufficient to demonstrate deliberate motion to dismiss, discovery in this matter would be fruitless.

indifference; mere negligence will not suffice. Hayes v. Accordingly, defendants' motion for a stay of discovery

New York City Dept. of Corrections, 84 F.3d 614, 620 (2d pending the resolution of their motion to dismiss is granted.

Cir.1996); Morales v. New York State Dep't of Corrections,

842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not

encompass a cause of action sounding in negligence). CONCLUSION

The Court finds that the claims against Bishop, Magee, Barton WHEREFORE, based upon the foregoing analysis, it is

and McMahan should be dismissed. hereby

ORDERED, that plaintiff's motion to extend the time to file

C. Motion to Dismiss by Herman, Stewart and Stanford. an opposing reply (dkt.44) is denied as moot; and it is further

Plaintiff's claim against Stewart is that she failed to follow

up and see whether plaintiff had arrived in South Carolina. ORDERED, that defendants Bishop, Magee and McMahan's

Herman, he likewise asserts, failed to do his job because he motion to stay discovery until their motion to dismiss is

did not investigate plaintiff's violation reports. Plaintiff has decided (dkt.41) is granted; and it is further

not alleged how these actions run afoul of the Constitution;

and again, these claims seem to be grounded in negligence, RECOMMENDED, that defendants Peters and Williams'

which is not actionable under § 1983. Hayes, 84 F.3d at 620. motion to dismiss (dkt.13) be granted; and it is further

Plaintiff's claim against Stanford must fail because his

and McMahan's motion to dismiss (dkt.20) be granted; and it TO THIS REPORT WITHIN TEN (10) DAYS WILL

is further PRECLUDE APPELLATE REVIEW. Roldan v. Racette,

984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of

RECOMMENDED, that defendants Herman, Stewart and Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28

Stanford's motion to dismiss (dkt.34) be granted. U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),

All Citations

the parties have ten (10) days within which to file written

objections to the foregoing report. Such objections shall be Not Reported in F.Supp., 1997 WL 599355

Footnotes

1 I note, however, that the report-recommendation would survive even de novo review.

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

1995 WL 316935 Arthur, Chapman, McDonough, Kettering & Smetak, P.A.,

Minneapolis, MN, Eugene C. Shermoen, Jr., of counsel, for

Only the Westlaw citation is currently available.

J.C. Penney Ins. Co. and Metropolitan Ins. Co.

United States District Court,

N.D. New York. Shapiro & Kreisman, Rochester, NY, John A. DiCaro, of

counsel, for Metmor Financial, Inc.

Mina POURZANDVAKIL, Plaintiff,

v. Costello, Cooney & Fearon, Syracuse, Paul G. Ferrara, Robert

Hubert HUMPHRY, Judisicial Systeam of The State of J. Smith, of counsel, for Travelers Ins. Companies; Hirman

Minnesota and Olmested County Court Systeam, and Ins.; Commercial Union Ins. Companies.

State of Minnesota, Saint Peter State Hospital, Doctor

Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse, Thomas

Gammel Stephelton, et el Erickson, North West Bank

N. Kaufmann, of counsel, for American States Ins. Co. and

and Trust, Olmested County Social Service, J.C. Penny Prudential Ins. Co.

Insurnce, Metmore Finicial, Traveler Insurnce, Comecial

Union Insurnce, Hirman Insurnce, Amrican State Steven C. Youngquist, Rochester, MN, pro se.

Insurnce, Farmers Insurnce, C. O Brown Insurnce, Msi

Thomas J. Maroney, U. S. Atty., Syracuse, NY, William F.

Insurnce, Steven Youngquist, Kent Chirstain, Micheal

Larkin, Asst. U. S. Atty., of counsel, for Michael Benson,

Benson, United Airline, Kowate Airline, Fordmotor Postmaster N. D. of New York.

Cridite, First Bank Rochester, George Restwich,

British Airways, Western Union, Prudenial Insurnce, George F. Restovich & Associates, Rochester, MN, George F.

T.C.F. Bank, Judge Sandy Kieth, Judge Niergari, Restovich, of counsel, for George F. Restovich.

Olmestead County Judgering, Judge Mores, Judge

Conboy, McKay, Bachman & Kendall, L.L.P, Watertown, NY,

Jacobson, Judge Challien, Judge Collin, Judge Thomase, George K. Myrus, of counsel, for Western Union.

Judge Buttler, Judge Morke, Judge Moweer, Sera

Clayton, Susan Mudhaul, Ray Schmite, Defendants.1 Richard Maki, Rochester, MN, pro se.

Civ. A. No. 94-CV-1594.

| MEMORANDUM-DECISION AND ORDER

May 23, 1995.

POOLER, District Judge.

Attorneys and Law Firms

Hubert H. Humphrey, III, Atty. Gen. of the State of Minn., INTRODUCTION

St. Paul, MN, Jerome L. Getz, Asst. Atty. Gen., of counsel,

*1 In the four and one-half months since she filed this

for Hubert H. Humphry, III, Judicial System of the State

action, plaintiff Mina Pourzandvakil has filed three amended

of Minnesota, St. Peter Regional Treatment Center, Gerald

complaints and ten motions. She also has sought and received

Gammell, MD, William Erickson, MD, Thomas Stapleton,

entry of default against ten defendants, none of whom she

MD, the Honorable James L. Mork, Chief Judge Anne

properly served. She twice has sought and been denied

Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge

temporary restraining orders. She has included in her action

Dennis Challeen, and Judge Lawrence Collins.

defendants with no apparent connection to this forum, that

Condon & Forsyth, P.C., New York City, Stephen J. Fearon, were vindicated in actions she brought in other forums.

Michael J. Holland, of counsel, for British Airways, P.L.C.

and Kuwait Airways Corp. In response, several individual defendants and groups of

defendants have filed a total of twelve motions, some seeking

Dunlap & Seeger, P.C., Rochester, MN, Gregory J. Griffiths, vacation of the defaults entered against them, some seeking

of counsel, for Olmsted County, Raymond Schmitz, Susan dismissal and others seeking both. We grant defendants'

Mundahl, Norwest Bank Minnesota, N.A. (the Northwest motions insofar as they seek vacation of the clerk's entries of

Finally, we dismiss the complaint in its entirety against all are relevant to the various motions.

defendants.

*2 The Clerk of the Court has entered default against

the following defendants: J.C. Penny Insurnce (sic)2 (“J.C.

BACKGROUND Penney”), British Airways, Kowate (sic) Airline (“Kuwait”),

MSi Insurnce (sic) (“MSI”), Judge Mork, Steven Youngquist

Pourzandvakil commenced this action by filing a complaint (“Youngquist”), Prudncial Insurnce (sic) (“Prudential”), Ford

in the Office of the Clerk on December 9, 1994 (Docket No. Motor Credit (“Ford”), First Bank Rochester, and TCF Bank

1). The complaint named as defendants the Attorney General (“TCF”). Based on the submissions Pourzandvakil made in

of the State of Minnesota, the State of Minnesota and Olmsted support of her requests for entry of default, it appears that she

County, Minnesota judicial systems, various Minnesota served these defendants by certified mail.

judges and prosecutors, St. Peter State Hospital in Minnesota

and various doctors who worked at St. Peter's. Without The court has received answers from the following

specifying the time or defendant involved, the complaint defendants: Hubert H. Humphrey III, St. Peter Regional

accused the defendants of kidnapping Pourzandvakil and her Treatment Center, and Drs. Gerald H. Gammell, William

daughter, torturing Pourzandvakil in the Mayo Clinic since D. Erickson, and Thomas R. Stapleton (joint answer

April 1985, and causing Pourzandvakil and her daughter to filed January 9, 1995); Olmsted County, Ray Schmitz

suffer physically, financially and emotionally. Pourzandvakil (“Schmitz”), Susan Mundahl (“Mundahl”), C.O. Brown

twice requested that we issue a temporary restraining order. Agency, Inc. (“C.O. Brown”) (answer to amended complaint

We denied both requests. See Order entered December 14, filed January 23, 1995); George Restovich (“Restovich”)

1994 (Docket No. 4) and Memorandum-Decision and Order (answer to complaint or amended complaint filed January

entered December 22, 1994 (Docket No. 6). 30, 1995); Norwest Corporation (“Norwest”) (answer to

amended complaint filed January 31, 1995, amended

On December 27, 1994, Pourzandvakil filed an amended answer of Norwest Bank Minnesota, N.A. to amended

complaint (the “first amended complaint”) (Docket No. complaint filed February 13, 1995); Travelers Insurance

7) that appears to differ from the original complaint Company (“Travelers”) (answer filed February 1, 1995);

by adding British Airways as a defendant without Michael Benson (“Benson”) (answer filed February 6, 1995);

making any allegations against British Airways. The first Hirman Insurance (“Hirman”) (answer filed February 6,

amended complaint also differs by requesting additional 1995); Richard Maki (“Maki”) (answer to complaint or

damages for prior cases and adding descriptions of several amended complaint filed February 17, 1995); Western Union

previous cases. Annexed to the first amended complaint (answer filed February 21, 1995); Steven C. Youngquist

is another document labeled amended complaint (the (“Youngquist”) (answer to complaint or amended complaint

“annexed amended complaint”) (Docket No. 7) whose filed February 23, 1995); Kuwait (answer filed March 6,

factual allegations differ substantially from both the original 1995); J.C. Penney (answer filed March 22, 1995); Susan

complaint and the first amended complaint. The annexed E. Cooper3 (answer to amended complaint filed March 24,

amended complaint also adds British Airways as a party 1995); and Chief Judge Anne Simonett, Judge Jack Davies,

but specifies only that Pourzandvakil has travelled on that Judge Roger Klaphke, Judge Dennis Challeen and Judge

airline and that British Airways, along with other airlines on Lawrence Collins (joint answer filed April 3, 1995).

which Pourzandvakil has travelled, is aware of all the crimes

committed against her. The court has also received a total of ten motions from

Pourzandvakil since February 27, 1995. She moved for a

Pourzandvakil filed yet another amended complaint on default judgment against defendants J.C. Penney, First Bank

January 13, 1995 (the “second amended complaint”) Rochester, Prudential, Ford, MSI, British Airways, and TCF.

(Docket No. 11). The second amended complaint adds She moved for immediate trial and “venue in a different

as defendants several banks, other financial institutions, place” against several defendants and also requested action

insurance companies, insurance agents or brokers, attorneys according to law and criminal charges. Finally, she made

and airlines as well as the Postmaster of Olmsted County and motions opposing defendants' motions.

Western Union. The allegations against these defendants defy

from defendants. Several of the defendants moved for order enjoining plaintiff from filing or intervening in any

dismissal either under Rule 56 or Rule 12 of the Federal litigation against it. Youngquist also requested dismissal of

Rules of Civil Procedure. For instance, Commercial Union the complaint based on lack of personal jurisdiction and lack

Insurance Companies (“Commercial”) moved for dismissal of subject matter jurisdiction.

of Pourzandvakil's complaint pursuant to Fed. R. Civ. P.

12(b) or, in the alternative, for a more definite statement.

Commercial argued that Pourzandvakil's complaint against ANALYSIS

it is barred by res judicata and collateral estoppel and that

this court does not have subject matter jurisdiction over the The Defaults

complaints against Commercial. American States Insurance We vacate the defaults entered in this matter because plaintiff

Company (“ASI”) moved for dismissal based on plaintiff's improperly served defendants. Each application for entry of

failure to state a claim upon which relief can be granted. default shows service by certified mail, which is not permitted

ASI further moved for an order enjoining Pourzandvakil by relevant federal, New York or Minnesota rules. Under the

from further litigation against it. Maki moved for summary Federal Rules of Civil Procedure, service on an individual

judgment based on lack of personal jurisdiction, improper may be made by (1) delivery to the named defendant; or

venue, plaintiff's failure to state a claim upon which relief can (2) delivery to a person of suitable age and discretion at the

be granted, and lack of subject matter jurisdiction. Hubert H. defendant's dwelling house or usual place of abode; or (3)

Humphrey, III, the Judicial System of the State of Minnesota, delivery to an agent authorized by law or by the defendant

Judge James L. Mork, St. Peter Regional Treatment Center to receive service of process. Fed. R. Civ. P. 4(e)(2). Service

and Drs. Gammell, Erickson and Stapleton (collectively, the on an individual also can be accomplished through a method

“state defendants”) moved for summary judgment alleging authorized by the state in which the district court sits or in

lack of personal jurisdiction, improper venue, plaintiff's which the individual is located. Fed. R. Civ. P. 4(e)(1). Service

failure to state a claim on which relief can be granted, on a corporation may be accomplished in a judicial district

lack of subject matter jurisdiction, sovereign immunity, and, of the United States (1) pursuant to a method authorized by

on behalf of Judge Mork and the judicial system, absolute the law of the state in which the court sits or in which the

judicial immunity. The state defendants also requested costs corporation is located; or (2) by delivering a copy of the

and attorney's fees. Travelers moved for summary judgment summons and complaint to an officer, managing or general

based on res judicata and/or collateral estoppel, frivolity, lack agent, or to any other agent authorized by statute to receive

of subject matter jurisdiction, and improper venue. Travelers service and, if the statute so requires, by also mailing a copy to

sought a transfer of venue to Minnesota in the alternative. the defendant. Fed. R. Civ. P. 4(h)(1) and 4(e)(1). Neither New

Hirman moved for summary judgment based on frivolity, lack York nor Minnesota law authorizes personal service on an

of subject matter jurisdiction, and improper venue. Hirman individual or corporation by certified mail. See N.Y. Civ. Prac.

also sought transfer of venue in the alternative. Olmsted L. & R. §§ 308, 311 (McKinney Supp. 1995); N.Y. Bus. Corp.

County, Schmitz, Mundahl, C.O. Brown and Norwest sought Law § 306 (McKinney Supp. 1995); Minn. Stat. § 543.08

dismissal based on lack of personal jurisdiction, improper (1995); Minn. R. 4.03 (1995). Finally, service on states,

venue, and plaintiff's failure to state a claim upon which municipal corporations or other governmental organizations

relief can be granted. With respect to Schmitz and Mundahl, subject to suit can be effected by (1) delivering a copy of the

defendants sought dismissal based on absolute prosecutorial summons and complaint to the state's chief executive officer;

immunity, and with respect to C.O. Brown, defendants sought or (2) pursuant to the law of the state in which the defendant

dismissal on res judicata grounds. Metmor Financial, Inc. is located. Fed. R. Civ. P. 4(j)(2). Minnesota law does not

(“Metmor”) sought dismissal based on lack of personal authorize service on a governmental entity by certified mail.

jurisdiction, lack of subject matter jurisdiction, improper See Minn. R. 4.03(d) and (e) (1995).

venue, and plaintiff's failure to state a claim upon which relief

can be granted. Finally, Restovich moved for dismissal based We therefore grant the motions by British Airways,

on lack of personal jurisdiction.5 Prudential, Kuwait, and Youngquist to vacate the defaults

entered against them based both on the defective service and

*3 Four defendants, British Airways, Kuwait, Prudential, also on the meritorious defenses discussed below. We vacate

sua sponte the entries of default against MSI, Ford, First Bank

and preserved the service issue by raising it or declining to were not joined pursuant to Rule 14 or Rule 19. In addition, no

waive it. Concomitantly, we deny Pourzandvakil's motion federal long-arm statute is argued as a basis for jurisdiction,

for a default judgment against J.C. Penney, First Bank and the moving defendants all would be subject to jurisdiction

Rochester, Prudential, Ford, MSI, British Airways and TCF. in Minnesota. Therefore, we must look to New York's long-

We vacate sua sponte the entry of default against J. C. arm statute to determine whether plaintiff's extraterritorial

Penney, which preserved the issue of service in its answer. service of process could be effective under the one ground

By moving to dismiss or for summary judgment without remaining pursuant to Rule 4(k). See N.Y. Civ. Prac. L. &

raising the issue of service, Judge Mork may have waived R. § 302 (McKinney Supp. 1995). This rule provides that

the service issue. However Judge Mork objected to personal in order to obtain jurisdiction over a non-domiciliary, the

jurisdiction as inconsistent with due process and otherwise plaintiff must show both certain minimal contacts between

presented meritorious defenses. We therefore treat his motion the defendant and the state (such as transacting any business

for summary judgment as including a motion to vacate the in the state) and that the harm plaintiff suffered springs

entry of default and accordingly grant it. from the act or presence constituting the requisite contact.

Id. §302(a). The moving defendants have demonstrated that

plaintiff does not claim harm stemming from acts or contacts

II. The Jurisdictional Arguments within the purview of Section 302(a). Therefore, we grant

*4 In addition to raising various other grounds for dismissal, these defendants' motions to dismiss the complaint for lack of

such as plaintiff's failure to state a claim on which relief can be personal jurisdiction.

granted and res judicata, most of the moving defendants urge

(1) that this court lacks jurisdiction over either their persons

or the subject matter of the controversy or (2) that this action B. Subject Matter Jurisdiction

is improperly venued. As we must, we examine jurisdiction Pourzandvakil's complaint does not contain the jurisdictional

and venue first. allegations required by Fed. R. Civ. P. 8(a)(1). Several

defendants move for dismissal based either on this pleading

defect or on an affirmative claim that no subject matter

A. Personal Jurisdiction jurisdiction exists. Commercial, Travelers and Hirman

Maki, the state defendants, Olmsted County, Schmitz, (collectively, the “moving insurance companies”) moved for

Mundahl, C.O. Brown, Norwest, Metmor, Restovich and dismissal because plaintiff has not pled the complete diversity

Youngquist each allege that this court cannot exercise of citizenship required for subject matter jurisdiction. The

personal jurisdiction over them consistent with due process state defendants, relying on District of Columbia Court

constraints. In support of their motions, these defendants of Appeals v. Feldman, argue that we lack subject matter

present affidavits showing that they have had no significant jurisdiction over any issue that was determined in a

contacts with the state of New York relevant to this lawsuit state court proceeding to which plaintiff was a party.

and that their contacts with Pourzandvakil all occurred in District of Columbia Court of Appeals v. Feldman, 460

Minnesota. Nothing in plaintiff's voluminous submissions U.S. 462, 482 (1983). These issues include plaintiff's

links any of these defendants with New York. Plaintiff's hospitalization at St. Peter Regional Treatment Center.

extraterritorial service of process can be effective only Finally, Metmor also moved for dismissal based on lack of

under any of the following circumstances: (1) if defendants subject matter jurisdiction because plaintiff has failed to plead

could be subjected to the jurisdiction of a court of general a jurisdictional basis.

jurisdiction in New York State; (2) if the defendant is subject

to federal interpleader jurisdiction; (3) if the defendant is *5 The moving insurance companies note correctly that

joined pursuant to Rule 14 or Rule 19 of the Federal Rules insofar as the claims against them can be deciphered, plaintiff

of Civil Procedure and is served within a judicial district states that Traveler's and Commercial did not pay for damages

of the United States and not more than 100 miles from the to Pourzandvakil's property, harassed her and cancelled

place from which the summons issues; (4) if a federal statute her policy. Pourzandvakil does not mention Hirman in her

provides for long-arm jurisdiction; or (5) if plaintiff's claims complaint, but Hirman's attorney states that Pourzandvakil

arise under federal law and the defendants could not be informed him in a telephone conversation that her complaint

subject to jurisdiction in the courts of general jurisdiction in against Hirman stemmed from actions it took as an agent of

claim.

(1) a judicial district where any

The moving insurance companies argue that this court has defendant resides, if all defendants

no jurisdiction over the state insurance law claims absent reside in the same State, (2) a judicial

complete diversity of citizenship between plaintiff and the district in which a substantial part of

defendants. 28 U.S.C. § 1332. They point out that plaintiff the events or omissions giving rise to

lists a Syracuse, New York address for herself and that the claim occurred, or a substantial

Kuwait's address as listed in the complaint is also in New part of property that is the subject of

York. Therefore, they argue, there is no complete diversity the action is situated, or (3) a judicial

and this court lacks subject matter jurisdiction absent a district in which the defendants are

basis for pendent jurisdiction under 28 U.S.C. § 1367(a). subject to personal jurisdiction at the

Section 1367(a) requires a relationship between the state time the action is commenced, if there

and federal claims so that “they form part of the same case is no district in which the action may

or controversy.” Id. Because plaintiff's claims of denial of otherwise be brought.

insurance coverage bear no apparent relationship to her other

claims of rape, torture, harassment and kidnapping, we do not

believe that an adequate basis for supplemental jurisdiction *6 28 U.S.C. § 1391(a). Section 1391(b) provides that

exists. Id. Plaintiff's complaint therefore shows no basis federal question actions, except as otherwise provided by law,

for subject matter jurisdiction against the moving insurance may be brought only in

companies, and we dismiss as against them.6

We also agree with the state defendants that state court (1) a judicial district where any

decisions may render certain of plaintiff's claims against them defendant resides, if all defendants

unreviewable either because of res judicata or lack of subject reside in the same State, (2) a judicial

matter jurisdiction. However, because plaintiff's claims are so district in which a substantial part of

generally stated and so lacking in specifics, we are unable to the events or omissions giving rise to

discern at this juncture what parts of her complaint would be the claim occurred, or a substantial

outside the jurisdiction of the court. In any case, we already part of property that is the subject of

have determined that the state defendants are clearly entitled the action is situated, or (3) a judicial

to dismissal on personal jurisdiction grounds. As for Metmor, district in which any defendant may be

we believe that plaintiff may be attempting to state a civil found, if there is no district in which

rights claim by alleging a conspiracy to murder in connection the action may otherwise be brought.

with a judge although she fails to articulate an actionable

claim. We note that we already have determined, in any case,

that Metmor is entitled to dismissal on personal jurisdiction

Id. § 1391(b). The majority of the defendants in this

grounds.

action are residents of Minnesota and all of the events of

which Pourzandvakil complains occurred in Minnesota. No

C. Venue defendant resides in the Northern District of New York, and

Metmor, Travelers, Maki, Hirman, Norwest, Olmsted County, none of the conduct plaintiff complains of occurred in this

C.O. Brown, Schmitz and Mundahl also allege that district. Therefore, venue in the Northern District of New

Pourzandvakil's action is not properly venued in this court. York is clearly improper. Where venue is laid in the wrong

Although these defendants are entitled to dismissal on district, the court “shall dismiss, or if it be in the interest of

independent grounds, improper venue also would support justice, transfer such case to any district or division in which

dismissal as to these defendants. The general venue statute it could have been brought.” Id. § 1406(a). Because, as we

provides that a diversity action, except as otherwise provided will explain below, Pourzandvakil's complaint not only fails

by law, may be brought only in to state a claim upon which relief can be granted but is also

frivolous, we do not deem it to be in the interest of justice to

of improperly laid venue is “to eliminate impediments to the these actions occurred, except to say that they began in 1984

timely disposition of cases and controversies on their merits.” and 1985; (2) the names of the specific defendants involved in

Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993) any particular conduct; or (3) a description of any particular

(holding that it was an improper exercise of discretion to conduct constituting the harassment, torture or kidnapping.

dismiss rather than transfer when the statute of limitations on She suggests without further detail that ASI was involved

a timely filed complaint ran between filing and dismissal). In in a plot to murder her by placing her in the Mayo Clinic.

this case, as discussed below, a review of the complaint and Although plaintiff does not allege specific constitutional

the plaintiff's submissions on these motions indicates that her provisions or statutes that defendants have violated, we

claims are frivolous. We therefore dismiss as to the moving assume -- largely because many of the defendants involved

defendants both on venue grounds and on the other grounds are state officials or state employees and she appears to

already identified as applicable. We note also that plaintiff complain of certain aspects of various trials -- that she wishes

has made claims similar to those in this action against many to complain of violations of her civil rights. Complaints

of the same defendants in the United States District Court that rely on civil rights statutes are insufficient unless

for the District of Minnesota. Pourzandvakil v. Price, Civ. “they contain some specific allegations of fact indicating a

No. 4-93-207 (D.Minn. 1993). This action was dismissed by deprivation of rights, instead of a litany of general conclusions

Order to Show Cause entered April 12, 1993. that shock but have no meaning.” Barr v. Abrams, 810 F.2d

358, 363 (2d Cir. 1987). A pro se plaintiff's complaint must be

construed liberally and should be dismissed only “if it appears

III. Failure to State a Claim on Which Relief Can be beyond doubt that the plaintiff can prove no set of facts in

Granted and Frivolity support of his claim which would entitle him to relief.” Estelle

Defendants ASI, Travelers, Hirman, Norwest, C.O. Brown, v. Gamble, 429 U.S. 97, 106 (1976) (quotation omitted).

Olmsted County, Schmitz, Mundahl, Prudential, Metmor, and Pourzandvakil has not satisfied even this minimal test; her

Youngquist as well as the state defendants have attacked the complaint and submissions on this motion demonstrate that

sufficiency of plaintiff's complaint. Travelers and Hirman she cannot prove any set of facts in support of her claim which

urge that the complaint is frivolous while the remaining would entitle her to relief. Her complaint consists of a “litany

defendants argue only that the complaint fails to state a of general conclusions” rather than “specific allegations of

claim upon which relief can be granted. Fed. R. Civ. P. 12(b) fact”. Barr, 810 F. 2d at 363.

(6).7 We already have dismissed against all the moving

parties except ASI on jurisdictional grounds and therefore Ordinarily we would allow plaintiff an opportunity to replead

have the power to address the Rule 12(b)(6) issue only on to state specific allegations against ASI, but three factors

ASI's motion. See Bell v. Hood, 327 U.S. 678, 682-83 (1946) militate against this course of action. First, our December 22,

(subject matter jurisdiction); Arrowsmith v. United Press Int'l, 1994, Memorandum - Decision and Order denying plaintiff's

320 F.2d 219, 221 (2d Cir. 1963) (personal jurisdiction). request for a temporary restraining order indicated that she

We grant ASI's motion and note in passing that were we had not shown a likelihood of success on the merits of her

empowered to reach the merits regarding the remaining claim because she had not pled any specific actionable facts.

moving defendants, we also would dismiss the complaint Despite the fact that plaintiff since has filed three amended

against them for failure to state a claim upon which relief complaints, she still fails to set forth specific actionable

can be granted. We also dismiss sua sponte as frivolous the conduct. Second, the defendants' motions themselves have

complaint against all defendants who have not been granted alerted plaintiff to the need to show specific actionable facts,

dismissal previously on jurisdictional grounds. and yet her voluminous submissions in opposition to the

motions contain no specific actionable facts. Finally, plaintiff

*7 Pourzandvakil has not specified a statutory or has asserted similar allegations against many of the same

constitutional basis for her claims against ASI or any of the defendants sued in this action -- although not ASI -- as well as

other defendants. She alleges that certain of the insurance others in several different jurisdictions. See Pourzandvakil v.

company defendants denied her claims for damages without Blackman,8 Civ. No. 94-C944 (D.D.C. 1994), Pourzandvakil

alleging that the denial was in any respect wrongful. She v. Doty (E.D.N.Y. 1993), Pourzandvakil v. Price, Civ. No.

also alleges in general terms that the defendants harassed, 7 (D.Minn. 1993). Where the results are known to us these

tortured, kidnapped and raped her and perhaps were involved actions resulted in dismissals for failure to state a claim upon

No. 4-93-207, Order to Show Cause entered April 12, 1993; IV. Requests for Sanctions, Costs, Attorney's Fees and

Pourzandvakil v. Blackman, Civ. No. 94-C-94, Order entered Injunction Against Filing Further Actions

April 28, 1994, aff'd Civ. No. 94-5139 (D.C. Cir. 1994) (per Because plaintiff is pro se and appears to have a belief in

curiam). In the Minnesota case, dismissal took place after the the legitimacy of her complaint, we do not believe that the

district court offered plaintiff an opportunity to amend her purpose of Rule 11 would be served by awarding sanctions.

pleading and plaintiff still was not able to offer specifics.9 See Carlin v. Gold Hawk Joint Venture, 778 F. Supp. 686,

694-695 (S.D.N.Y. 1991). Moreover, her litigiousness has not

Even pro se complaints must show “some minimum level of

yet reached the point at which courts in this circuit have

factual support for their claims.” Pourzandvakil v. Blackman,

justified injunctive relief. See id. at 694 (and collected cases).

Civ. No. 94-C-94, (quoting White v. White, 886 F. 2d 721, 724

We therefore deny the requests of ASI and Prudential for

(4th Cir. 1989)). We therefore dismiss plaintiff's complaint

injunctive relief. Our refusal to grant sanctions and injunctive

against ASI for failure to state a claim upon which relief can

relief, however, is conditioned on this dismissal putting an end

be granted. Fed. R. Civ. P. 12(b)(6).

to plaintiff's attempts to sue these defendants on these claims

in this forum. Any further attempts by plaintiff to revive these

*8 We note that in Pourzandvakil v. Blackman, Judge John

claims will result in our revisiting the issue of sanctions. Id.

H. Pratt dismissed plaintiff's in forma pauperis complaint sua

at 695.

sponte under 28 U.S.C. §1915(d), holding both that it failed

to state a claim on which relief can be granted and that it was

frivolous. We consider here whether we have the authority

to dismiss sua sponte plaintiff's complaint, which was not CONCLUSION

filed in forma pauperis, as frivolous as against all non-moving

defendants. The Supreme Court explicitly has acknowledged *9 All defaults entered by the clerk are vacated.

a district court's power under Section 1915(d) to dismiss as Plaintiff's complaint is dismissed in its entirety against

frivolous a complaint which “lacks an arguable basis either in all moving and non-moving defendants. The dismissal of

law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). the complaint against Maki, the state defendants, Olmsted

The Supreme Court explicitly declined to rule, however, on County, Schmitz, Mundahl, C.O. Brown, Norwest, Metmor,

whether a district court has the authority to dismiss sua sponte Restovich, Youngquist, Commercial, Travelers and Hirman

frivolous complaints filed by non-indigent plaintiffs. Id. at is without prejudice as it is premised on this court's lack of

329 n.8. The law in this circuit is that a district court may sua power either over the person of the defendant or the subject

sponte dismiss a frivolous complaint even if the plaintiff has matter of the controversy. See Voisin's Oyster House, Inc.

paid the filing fee. See Tyler v. Carter, 151 F.R.D. 537, 540 v. Guidry, 799 F.2d 183, 188-9 (5th Cir. 1986) (dismissal

(S.D.N.Y. 1993), aff'd 41 F.3d 1500 (2d Cir. 1994); cf. Pillay v. for lack of subject matter jurisdiction is not a dismissal on

I.N.S., 45 F.3d 14, 17 (2d Cir. 1995) (per curiam) (dismissing the merits); John Birch Soc'y. v. National Broadcasting Co.,

sua sponte appeal for which appellant had paid normal filing 377 F.2d 194, 199 n.3 (2d Cir. 1967) (dismissal for lack of

fee). We believe that sua sponte dismissal is appropriate and subject matter jurisdiction implies no view of merits); Orange

necessary here because (1) plaintiff's claims lack an arguable Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871,

basis in law and fact; (2) plaintiff has repeatedly attempted to 875 (3d Cir.) cert. denied, 322 U.S. 740(1944) (dismissal

replead her claims without being able to articulate actionable for lack of personal jurisdiction is not a dismissal on the

conduct; (3) some of plaintiff's claims have been tested in merits). The dismissals against the remaining defendants are

other courts and found to be without merit; and (4) the issue with prejudice. All requests for sanctions and attorney's fees

of frivolity has been presented by at least some of the moving are denied. The requests of defendants ASI and Prudential

defendants. for an injunction with respect to future litigation is denied.

However, plaintiff is cautioned that any litigation in this

We therefore dismiss with prejudice plaintiff's complaint as forum attempting to revive the claims addressed herein may

frivolous as to all defendants -- regardless of whether they subject her to sanctions. Plaintiff's motions are denied as

have moved for dismissal -- that have not been granted moot.

dismissal on jurisdictional grounds. We direct the clerk to

return plaintiff's filing fee to her. Tyler, 151 F.R.D. at 540. IT IS SO ORDERED.

Not Reported in F.Supp., 1995 WL 316935

Footnotes

1 Names in the caption are spelled to reflect plaintiff's complaint.

2 Plaintiff's spelling is idiosyncratic, and we preserve the spelling in its original form only where absolutely

necessary for accuracy of the record. Otherwise we substitute the word we believe plaintiff intended for the

word she actually wrote, e.g., “tortured” for “tureared.”

3 Susan E. Cooper is not named as a defendant in the original complaint or any amended complaint filed with

this court. From correspondence with Cooper's attorney, it appears that plaintiff sent Cooper a copy of a

different version of the complaint. Because the original of this version was not filed with the court, no action

against Cooper is pending in this court.

4 The court has also received three additional motions returnable May 22, 1995. The first -- from Judges Davies,

Klaphake, Challeen, Collins and Chief Judge Simonett requests summary judgment dismissing the complaint

based on lack of personal jurisdiction. The second by Western Union also requests summary judgment based,

inter alia, on plaintiff's failure to state a claim on which relief can be granted. The third, by British Airways,

also requests dismissal based, inter alia, on plaintiff's failure to state a claim on which relief can be granted.

All three motions are mooted by this memorandum-decision and order which dismisses the complaint in its

entirety against non-moving defendants for failure to state a claim on which relief can be granted.

5 The court also received an affidavit and memorandum of law in support of summary judgment from J.C.

Penney. However, the documents were not accompanied by a notice of motion.

6 We ordinarily would offer plaintiff an opportunity to amend her complaint because her submissions and

Kuwait's answer indicate two bases on which plaintiff might be able to argue diversity of citizenship. First,

although plaintiff lists her address in Syracuse, New York, she also has indicated on the civil cover sheet

that she is an Iranian Citizen and we are not aware of her residence status. As a permanent resident, she

would be deemed a citizen of the state in which she resides. 28 U.S.C. § 1332(a). However, if she lacks

permanent resident status, her citizenship would be considered diverse from that of all the defendants. Id.

§ 1332(a)(2). Second, Kuwait has submitted an answer in which it claims to be a foreign state within the

meaning of 28 U.S.C. § 1603. If Kuwait is correct, plaintiff may have an independent basis for jurisdiction over

Kuwait. See 28 U.S.C. § 1330. If Pourzandvakil could show subject matter jurisdiction over Kuwait without

resort to diversity of citizenship, then Kuwait's residence in New York may not be relevant to the issue of

whether this court has diversity jurisdiction under Section 1332. Cf. Hiram Walker & Sons, Inc. v. Kirk Line,

877 F.2d 1508, 1511-1512 (11th Cir. 1989), cert. denied, 115 S.Ct. 1362 (1995) (holding that the joinder of a

non-diverse defendant sued under federal question jurisdiction did not destroy diversity as to the remaining

defendant). Here, however, plaintiff's complaint is subject to so many other meritorious defenses -- including

complete failure to state a cause of action -- that an amendment would be an exercise in futility. Additionally,

plaintiff has not requested permission to amend, proffered an amended pleading, or indeed even supplied an

affidavit stating her residency status or alleging a basis of jurisdiction over her claims against Kuwait other

than diversity under 28 U.S.C. § 1332.

a notice of motion.

8 Former Supreme Court Justice Harry A. Blackmun.

9 We note also that plaintiff has not requested leave to amend in this action.

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