Ballentine v. State of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

QUINTIN J. BALLENTINE,

Plaintiff,

24-CV-4615 (LTS)

-against-

ORDER OF DISMISSAL

STATE OF NEW YORK, WITH LEAVE TO REPLEAD

Defendant.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is appearing pro se, brings this action under the Violent Crime Control and

Law Enforcement Act of 1994 (VCCLEA), 34 U.S.C. § 12601 et seq., the Rehabilitation Act, 29

U.S.C. § 794, the Americans with Disabilities Act (ADA), 42 U.S.C. § 2000d, and a federal

criminal statute.18 U.S.C. § 241. He alleges that he lived in supportive housing, operated by the

nonprofit Post Graduate Center for Mental Health (PCMH), and that the State of New York

violated its duty to protect his rights and investigate his complaints about PCMH. He brings this

suit against the State of New York, seeking damages.

By order dated September 7, 2024, the Court granted Plaintiff’s request to proceed in

forma pauperis (IFP), that is, without prepayment of fees.

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

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.

Rule 8 requires a complaint to include enough facts to state a claim for relief “that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially

plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that

the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must

accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79

(2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of

action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating

legal conclusions from well-pleaded factual allegations, the Court must determine whether those

facts make it plausible – not merely possible – that the pleader is entitled to relief. Id.

BACKGROUND

The following facts are drawn from the complaint. Plaintiff’s claims arose between July

1, 2019, and June 12, 2024, at a supportive housing building on Marion Avenue in the Bronx,

which is operated by PCMH. (ECF 1 ¶ III.) He alleges that PCMH is “licensed by the State of

New York” and it “receives a variety of state, city and federal funding to operate its facility.”

(Id.) Since he entered the Marion Avenue housing in 2019, Plaintiff has suffered “repeated

harassment,” including having staff call emergency services with false or exaggerated

descriptions of incidents in which he was involved; these incidents generally were caused by

staff berating and ridiculing Plaintiff. (Id.)

Several times, PCMH staff and officers from the New York Police Department’s (NYPD)

52nd Precinct, none of which are named in this action, surrounded Plaintiff “in a threatening,

intimidating, and harassing manner,” and forcibly took him to the hospital. (Id. at 6.) At some

point, PCMH staff “tried to prevent [Plaintiff] from advocating for the individuals living there

who were subject to constant abuse, ridicule, mistreatment and discrimination” at the hands of

PCMH staff and management. (Id.) Plaintiff asserts generally that, at the Marion Avenue

housing, there has been “abuse, neglect, mistreatment, and abuse of the right to use emergency

services” and that PCMH staff “are unprofessional, belligerent, confrontational, and . . .

unqualified.” (Id.) Plaintiff has two pending suits against PCMH: one in the Supreme Court,

Bronx County, under Index No. 5457-2022, and one in Housing Court, Bronx County, Index No.

001852-24. (Id.)

In this action, Plaintiff sues the State of New York because “New York has a duty to

protect the rights of individuals and provide a safe and emotionally supportive living

environment . . . for these facilities.” (Id.) Plaintiff’s complaints to New York’s Justice Center

and the Office of Mental Health (OMH) of “abuse, mistreatment, and harassment” were

“disregarded. (Id.) Plaintiff seeks money damages in excess of $3 million. (Id. ¶ IV.) 1

1 In addition to this complaint, Plaintiff has filed six other pro se complaints in 2024. See

Ballentine v. Bronx Care Medical Center, ECF 1:24-CV-5480 (S.D.N.Y. July 17, 2024);

Ballentine v. Google LLC, ECF 1:24-CV-4699 (S.D.N.Y. June 18, 2024) Ballentine v. Credit

One Bank N.A., ECF 1:24-CV-4710 (S.D.N.Y. June 18, 2024); Ballentine v. Verizon Comm’ns,

Inc., ECF 1:23-CV-4903 (S.D.N.Y. filed June 25, 2024); Ballentine v. Yahoo, Inc., ECF 1:24-

CV-5253 (S.D.N.Y. July 7, 2024); Ballentine v. NYCPD, ECF 1:24-CV-6121 (S.D.N.Y. filed

Aug. 6, 2024).

DISCUSSION

A. Violent Crime and Law Enforcement Act

Plaintiff invokes the Violent Crime Control and Law Enforcement Act of 1994

(VCCLEA), which originally appeared at 42 U.S.C. § 14141 and has been recodified as 34

U.S.C. § 12601 et seq. The VCCLEA prohibits government employees responsible “for the

administration of juvenile justice or the incarceration of juveniles” from depriving persons of

rights, privileges, or immunities secured or protected under the constitution. 34 U.S.C. § 12601.

The United States Attorney General has the authority to bring a civil action for a violation of this

statute. 34 U.S.C. § 12601(b)). Individuals cannot, however, sue for a violation of Section 12601.

See Peralta v. City of New York, No. 23-CV-10785 (JMF), 2024 WL 1704774, at *7 (S.D.N.Y.

Apr. 18, 2024) (“There is no private right of action under Section [12601].”); Ming v. Brouillete,

No. 6:23-CV-0086, 2023 WL 5779558, at *4 (N.D.N.Y. Apr. 7, 2023) (Section 12601 “contains

no private right of action”). Plaintiff's claim under Section 12601 must therefore be dismissed for

failure to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

B. Disability Discrimination

Plaintiff invokes the Rehabilitation Act and the ADA for his claims against Defendant

State of New York. The substantive standard for both statutes is similar. The Rehabilitation Act

provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of

her or his disability, be excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal financial assistance.”

29 U.S.C. § 794(a). Title II of the ADA provides that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or denied the benefits of the

services, programs, or activities of a public entity, or be subject to discrimination by such entity.”

42 U.S.C. § 12132. To assert a claim under either of these statutes, a plaintiff must demonstrate

that:

(1) he is a qualified individual with a disability; (2) the defendant is subject to

one of the Acts; and (3) he was denied the opportunity to participate in or benefit

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

discriminated against by the defendant because of his disability.

McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (quoting Powell v. Nat’l Bd. of

Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004)).

Plaintiff sues the State of New York, which generally enjoys Eleventh Amendment

immunity from suit for damages in federal court. U.S. Const. amend. XI. Congress, however,

included provisions abrogating the Eleventh Amendment immunity of the states in both the

Rehabilitation Act and Title II of the ADA. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280

F.3d 98, 111 (2d Cir. 2001) (citing 42 U.S.C. § 2000d-7 and 42 U.S.C. § 12202). The

Rehabilitation Act was enacted pursuant to the Spending Clause of the Constitution, id. at 113,

whereas Title II of the ADA was enacted pursuant to Congress’s power under Section 5 of the

Fourteenth Amendment. Id. at 108. As a result, the Rehabilitation Act abrogates Eleventh

Amendment immunity for claims against the State of New York when the state has knowingly

waived this right by accepting federal funds. Id. at 114. By contrast, to comport with Congress’s

Section 5 authority, a plaintiff seeking money damages from the state in federal court under the

ADA must “establish that the Title II violation was motivated by discriminatory animus or ill

will based on the plaintiff's disability,” in order to validly abrogate Eleventh Amendment

immunity. Id. at 112.

Here, although Plaintiff does not specifically allege that he has a disability, he can be

understood as alleging that he qualified for supportive housing because of a “behavioral health

disorder” (ECF 1 at 5), and the Court therefore assumes for purposes of this order that he has a

disability for purposes of the Rehabilitation Act and the ADA.

Plaintiff has not alleged, however, that Defendant State of New York denied him any

services, programs, or activities that it offered, or that the State of New York discriminated

against him by reason of his disability. Instead, Plaintiff alleges that the State of New York failed

to adequately monitor the housing that PCMH provided (and received state funding to offer), and

failed to investigate Plaintiff’s complaints about PCMH staff and housing, which are also the

subject of Plaintiff’s separate suits against PCMH. There are no allegations that Defendant’s

alleged failures – to monitor PCMH or investigate Plaintiff’s complaints – occurred because of

reactions to his disability.2 Plaintiff thus fails to state a claim on which relief can be granted

under the Rehabilitation Act or the ADA.

Moreover, because Plaintiff does not allege that Defendant State of New York violated

Title II of the ADA due to “discriminatory animus or ill will,” there is no valid abrogation of

Eleventh Amendment immunity for this ADA claim. The Court therefore dismisses Plaintiff’s

damages claims, brought under the Rehabilitation Act and the ADA, against the State of New

York. 28 U.S.C. § 1915(e)(2)(B)(ii), (iii).

C. Federal Criminal Statutes

Plaintiff invokes a federal criminal statute, 18 U.S.C. § 241. A private citizen, however,

cannot prosecute a criminal action in federal court. See Leek v. Timmerman, 454 U.S. 83, 86-87

(1981); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a

2 The Court also notes that there is “no constitutional right to an investigation by

government officials.” Bernstein v. New York, 591 F. Supp. 2d 448, 460 (S.D.N.Y. 2008); see

also Burroughs v. Mitchell, 325 F. Supp. 3d 249, 284 (N.D.N.Y. 2018) (dismissing

“constitutional claim against defendants for failing to report [or] investigate his complaints”).

judicially cognizable interest in the prosecution or nonprosecution of another.”). Because federal

prosecutors possess discretionary authority to bring criminal actions, they are “immune from

control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457

F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses Plaintiff’s claim under 18 U.S.C.

§ 241 for failure to state a claim on which relief may be granted. See 28 U.S.C.

§ 1915(e)(2)(B)(ii).

D. State law Claims

Plaintiff’s complaint might be construed as asserting claims arising under state law. A

district court may decline to exercise supplemental jurisdiction of state law claims when it “has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally,

“when the federal-law claims have dropped out of the lawsuit in its early stages and only state-

law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Having dismissed the federal claims of

which the Court has original jurisdiction, the Court declines to exercise its supplemental

jurisdiction of any state law claims Plaintiff may be asserting. See Kolari v. New York-

Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the

discretionary nature of supplemental jurisdiction by enumerating the circumstances in which

district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. of Surgeons, 522

U.S. 156, 173 (1997))).

LEAVE TO AMEND

Plaintiff proceeds in this matter without the benefit of an attorney. District courts

generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment 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). In light of Plaintiff’s pro se status,

and in an abundance of caution, the Court grants Plaintiff 30 days’ leave to amend his complaint

to detail his claims.

If Plaintiff does not file an amended complaint within the time allowed, the Court will

direct the Clerk of Court to enter judgment in this action.

CONCLUSION

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

U.S.C. § 1915(e)(2)(B)(ii)-(iii), with 30 days’ leave to replead. The Court declines to exercise its

supplemental jurisdiction of any state law claims that Plaintiff may be asserting.

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. See

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

The Court directs the Clerk of Court to hold this matter open on the docket until a civil

judgment is entered.

SO ORDERED.

Dated: November 21, 2024

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge