Roberts v. EmblemHealth Neighborhood Care

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JAZMINE I. ROBERTS,

Plaintiff,

-against- 24-CV-1857 (LTS)

EMBLEMHEALTH NEIGHBORHOOD ORDER OF DISMISSAL

CARE; JANE DOE CUSTOMER SERVICE

REPRESENTATIVES; AND JOHN DOE

MANAGER,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff Jazmine I. Roberts, a Queens resident who is appearing pro se, brings this action

invoking the Court’s federal question jurisdiction, 28 U.S.C. § 1331. She names as Defendants

EmblemHealth Neighborhood Care (“Emblem”), three Jane Doe Customer Service

Representatives (in Queens, over the telephone, and in Manhattan, respectively) and John Doe

Manager.1 By order dated May 23, 2024, the Court granted Plaintiff’s request to proceed in

forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth in this

order, the Court dismisses Plaintiff’s complaint due to failure to state a claim.

STANDARD OF REVIEW

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

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

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

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

1 From this point forward, these individual defendants will be referred to as Jane Doe Rep

1, Jane Doe Rep 2, Jane Doe Rep 3, and John Doe Manager, respectively.

dismiss a complaint when the court lacks subject matter jurisdiction of the claims raised. See

Fed. R. Civ. P. 12(h)(3).

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

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

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

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

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

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

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

pleader is entitled to relief. Taking all of these standards together, courts liberally construe

pleadings prepared by pro se litigants and hold them “‘to less stringent standards than formal

pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

BACKGROUND

The following facts are drawn from the complaint.2 Plaintiff alleges that, as a result of

HealthFirst disenrolling her due to her loss of special needs status, she went to Emblem to

reenroll into a marketplace plan. (ECF No.1 at 5). Plaintiff, however,

was told by an receptionist of Eblem Health to call a Customer Care Rep named

Felicia because at 52 Duane St NY, NY there aren’t any enrollment customer

service specialist. Once I called the customer service specialist for Eblem, Felicia

said I have to call someone eles to complete the enrollment process. Which ended

up with me trying to scheduel an in person visit at one of the indicated offices.3

All of the indicated offices mentioned as places of occurrence have denied me the

right to an enrollment reasonable accommodation.

2 The Court quotes from the complaint verbatim. All spelling, grammar, and punctuation

are as in the original unless noted otherwise.

3 Plaintiff lists offices at 41-61 Kissena Boulevard in Queens, NY and 215 W 125th Street

in Manhattan, NY.

(Id). Plaintiff alleges that she needs a “NYS Medicaid market healthplan in order to get the

appropriate healthcare services” for her “pre-existing medical histories as well as current medical

histories.” (Id. at 6). She is “experiencing STD outbreaks, lapses in [her] mental health therapy

and psychotropic medication regime.” She states the relief she is seeking is “unknown” but does

state that not being offered reasonable accommodations has negatively impacted her health (Id.).

She identifies the following as federal constitutional or federal statutory rights that have been

violated: “denial of compliances with Healthcare, NYSDH, NYSDCMH, ADA, Human Rights.”

(Id. at 2).

DISCUSSION

A. Private Defendants

Because Plaintiff asserts that Defendants violated her rights, the Court construes

Plaintiff’s complaint as asserting claims under 42 U.S.C. § 1983. To state a claim under Section

1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the

United States was violated, and (2) the right was violated by a person acting under the color of

state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988). “[N]either a state nor its

officials acting in their official capacities are “persons” under [Section] 1983,” except in certain

circumstances not at issue here. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).

Defendant Emblem is a not-for-profit, private health insurer that contracts with the state

of New York to offer health coverage for Medicare-eligible individuals.4 Plaintiff has not alleged

that Emblem has acted under color of state law, and a defendant’s affiliation with Medicaid

programs does not make that defendant a state actor. See, e.g., Fahmy v. Duane Reade, Inc., No.

4 See EmblemHealth, Explore Medicare Advantage Plans,

https://www.emblemhealth.com/plans/medicare-advantage[https://perma.cc/2RKH-WBDL] (last

visited July 19, 2024).

05-CV-9479, 2006 WL 2322672, at *4 (S.D.N.Y. Aug. 8, 2006) (“Even if defendants were

associated with the government by virtue of Duane Reade’s prescription drug business, this

association, presumably based on regulation or subsidization, would not imply state action.”);

see also Houston v. Highland Care Ctr., Inc., No. 23-CV-8186, 2024 WL 638721, at *2

(E.D.N.Y. Jan. 26, 2024) (“The defendant is not a state actor simply because it participated in

Medicare and Medicaid programs.”); Veldhuis v. Geico Gen. Ins. Co., No. 22-CV-1042, 2023 WL

319576, at *4 (D. Conn. Jan. 19, 2023) (“The Supreme Court has rejected an argument that a

private insurance company constitutes a ‘state actor’ for purposes of 1983 simply because the

insurance company is subject to state regulation.”). Accordingly, Plaintiff’s claims against

Emblem under 42 U.S.C. section 1983 fail to state a claim upon which relief may be granted and

must be dismissed.

Plaintiff’s Section 1983 claims against Jane Doe Reps 1 – 3 and John Doe Manager must

also be dismissed. A claim for relief under Section 1983 must allege facts showing that each

defendant acted under the color of a state “statute, ordinance, regulation, custom, or usage.” 42

U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank

of Am., 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307,

323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private

parties.”). Because these individual Defendants are private parties who are not alleged to work

for any state or other government body, Plaintiff cannot state a claim against these Defendants

under Section 1983.

Plaintiff’s Section 1983 claims are therefore dismissed for failure to state claim pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii).

B. ADA Claim

Plaintiff additionally asserts a violation under the Americans with Disabilities Act

(“ADA”). (ECF No. 1 at 2.) To establish a violation under the ADA, Plaintiff must show (1) that

she is a “qualified individual” with a disability; (2) that Defendant is subject to the ADA; and

(3) that she was denied the opportunity to participate in or benefit from Defendant’s services,

programs, or activities, or was otherwise discriminated against by the Defendant, by reason of

her disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003); see also 42 U.S.C.

§ 12132 (“No qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.”). The ADA defines a

“disability” as “a physical or mental impairment that substantially limits one or more major life

activities.” 42 U.S.C. § 12102. “There can be no action for violation of the ADA without an

allegation that the complained of deprivation was a result of the plaintiff’s disability.” Aquino v.

Prudential Life & Cas. Ins. Co., 419 F. Supp. 2d 259, 277-78 (E.D.N.Y. 2005) (citing Baker v.

New York, No. 04-CV-6221, 2004 WL 1682780 (W.D.N.Y. May 28, 2004)).

Although Plaintiff invokes the ADA, she provides no facts suggesting that she is disabled

within the meaning of the ADA. Moreover, even assuming that Plaintiff’s “pre-existing medical

histories as well as current medical histories,” qualify as disabilities under the ADA, Plaintiff

fails to allege facts showing that Defendants’ alleged actions against her occurred because of

those conditions. (ECF No. 1 at 6). Plaintiff states that the Emblem offices denied her “the right

to an enrollment reasonable accommodation,” (id.) but since she fails to allege facts showing any

causal relationship between her alleged disability and the Defendants’ actions, her ADA claim

fails. See Buckley v. Med. Bd. & Psychs. of Respective States, No. 17-CV-8450, 2017 WL

8777380, at *2-3 (S.D.N.Y. Nov. 28, 2017) (dismissing ADA claim where plaintiff did not allege

any disability or allege any causal connection between the alleged disability and defendants’

actions). Plaintiff’s ADA claims are therefore dismissed for failure to state a claim pursuant to 28

U.S.C. § 1915(e) (B)(ii).

C. Leave to Amend Denied

District courts generally grant a pro se plaintiff an opportunity to amend a complaint to

cure its defects but leave to amend is not required where it would be futile. See Hill v. Curcione,

657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The

Court declines to grant Plaintiff leave to amend her complaint because it appears that the defects

in the complaint cannot be cured with an amendment.

D. Litigation History and Warning

Plaintiff is not a stranger to this Court. A review of the Public Access to Court Electronic

Records (“PACER”) system reveals that from October 7, 2020 through June 24, 2024, Plaintiff

filed 16 actions in this Court, eight of which have been dismissed. See Roberts v. Guidance Ctr.

of Westchester, ECF 1:20-CV-8409, 12 (S.D.N.Y. Sept. 20, 2021) (dismissing complaint for

failure to state a claim); Roberts v. U.S. Marshall Serv., ECF 1:21-CV-11234, 6 (S.D.N.Y. July

27, 2022) (dismissing complaint as barred by the doctrine of sovereign immunity); Roberts v.

U.S. Dist. Ct. for the S.D.N.Y., ECF 1:22-CV-0127, 6 (S.D.N.Y. Jan. 10, 2022) (dismissing

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii)); Roberts v. The N.Y. State Dep’t of

Tax’n and Finance, ECF 1:22-CV-0208, 7 (S.D.N.Y. Apr. 4, 2022) (dismissing complaint on

Eleventh Amendment immunity grounds, lack of subject matter jurisdiction, and failure to state a

claim); Roberts v. St. Joseph’s Med. Ctr., ECF 1:23-CV-07384, 5 (S.D.N.Y. Dec. 1, 2023)

(dismissing complaint without prejudice for lack of subject matter jurisdiction); Roberts v.

Amtrak R.R. Co., ECF 1:23-CV-8093, 6 (S.D.N.Y. Jan. 9, 2024) (dismissing complaint as barred

by the doctrine of sovereign immunity and for lack of subject matter jurisdiction); Roberts v.

Narayan Pharmacy, ECF 1:24-CV-1317, 5 (S.D.N.Y. May 1, 2024) (dismissing complaint for

lack of subject matter jurisdiction); Roberts v. Montefiore Mount Vernon, Univ. Hosp. for Albert

Einstein Coll. of Med., ECF 1:24-CV-1385, 5 (S.D.N.Y. May 2, 2024) (dismissing complaint for

lack of subject matter jurisdiction).

In light of Plaintiff’s litigation history, she was or should have been aware when she filed

this case that her claims lack merit. See Sledge v. Kooi, 564 F.3d 105, 109-10 (2d Cir. 2009)

(discussing circumstances where frequent pro se litigant may be charged with knowledge of

particular legal requirements).

Plaintiff is therefore warned that the further filing of nonmeritorious cases may result in

an order directing her to show cause why she should not be prohibited from filing any further

actions in this court IFP without first obtaining permission from this court to file her complaint.

See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (“The unequivocal rule in this circuit is

that the district court may not impose a filing injunction on a litigant sua sponte without

providing the litigant with notice and an opportunity to be heard.”).

CONCLUSION

Plaintiff’s complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed for failure to

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

Plaintiff is warned that the further filing of nonmeritorious cases may result in an order

directing her to show cause why she should not be prohibited from filing any further actions in

this court IFP without first obtaining permission from this court to file.

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

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

Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates

good faith when he seeks review of a nonfrivolous issue).

The Court directs the Clerk of Court to enter judgment in this action.

SO ORDERED.

Dated: September 9, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge