Recant v. DeSales Assisted Living Corp.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ROBIN RECANT,

Plaintiff,

-against-

24-CV-8330 (LTS)

DE SALES ASSISTED LIVING CORP; VISTA

ASSISTED LIVING; NICOLE ATANASIO & ORDER OF DISMISSAL

JOHN HILL RN; NYC HOUSING COURT WITH LEAVE TO REPLEAD

JUDGE FRANCIS ORTIZ; NY STATE DEPT

OF HEALTH,

Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is proceeding pro se, brings this action invoking the Court’s federal

question jurisdiction. She alleges that the events giving rise to her claims occurred at her assisted

living residence, Vista on 5th (“Vista”). Named as Defendants are Vista; Vista CEO, Nicole

Atanasio; Vista Director of Nursing, John Hill; the De Sales Assisted Living Corporation (“De

Sales”); New York City Housing Court Justice Francis Ortiz; and the New York State

Department of Health (“DOH”). By order dated January 21, 2025, the Court granted Plaintiff’s

request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.1 For the

following reasons, the Court dismisses the complaint, with 30 days’ leave to replead.

STANDARD OF REVIEW

The Court must dismiss an IFP complaint, or portion thereof, 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.

1 The Court had originally denied Plaintiff’s IFP application, but after she submitted

documentation showing that she could not afford the fees, the Court granted the application.

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. 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).

BACKGROUND

The events giving rise to Plaintiff’s claims concern Plaintiff’s living conditions in her

Vista apartment; she alleges these events occurred from September 2024 to the present day.

Plaintiff claims violations of “warrant of habitability; tenant aggravated harassment; no repair of

utilities; failure to maintain apt. in livable condition.”2 (ECF 1, at 2.) Plaintiff does not include

any facts in her complaint but rather refers the Court to her “order to show cause,” where

Plaintiff complains about the conditions of her Vista apartment. In that document, Plaintiff states

that she has

received threats of great physical harm, been abused . . . physically & mentally no

toilet – x5 wks, or nonworking thermostat no heat or 95 [degrees]. Staff residents

entering my apartment with keys without my invitation. Clothing shoes & jewelry

taken, no hot water. Spilling sharp objects & white powder on the floor capsules

of various sizes on the floor, stolen keys & removes stolen.

(ECF 9, at 1.) She also indicates in this document that “the police have done nothing despite

reports.” (Id.)

Plaintiff seeks money damages and a “[r]estraining order to keep tenant from harassment

by staff & other residents.” (ECF 1, at 6.)

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

are as in the original unless noted otherwise.

Plaintiff attaches to her complaint documents from her state court proceedings in Civil

Court of the City of New York, Housing Part, where Plaintiff complains of the conditions of her

Vista apartment. (See id. at 57-58.)

DISCUSSION

Plaintiff brings this action without stating facts supporting her claims. She also names

defendants who either cannot be sued under federal law or are immune from liability in this

action. The Court therefore dismisses Defendants on these grounds. The Court also grants

Plaintiff leave to amend her complaint to state facts showing that any named defendant is liable,

as is required under Rule 8 of the Federal Rules of Civil Procedure.

A. Claims against De Sales, Vista, Vista CEO Atanasio and Vista Director of Nursing

Hill

Because Plaintiff invokes the Court’s federal question jurisdiction, the Court construes

the complaint as asserting claims under 42 U.S.C. § 1983. 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 generally are not liable under Section 1983. 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.”).

Although there are limited circumstances in which a nominally private actor can be deemed a

state actor for Section 1983 purposes, it is well established that receipt of government funding,

“no matter how extensive, is insufficient to transform otherwise private conduct into state

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

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

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

plaintiffs alleged that landlord “receive[d] public funds and tax exemptions in exchange for

providing low-income housing,” and holding that entities do not become state actors “simply

because those entities receive state funding for providing a public service” (citing Rendell-Baker

v. Kohn, 457 U.S. 830, 841 (1982))).

Plaintiff sues De Sales, Vista, Vista CEO Atanasio, and Vista Director of Nursing Hill,

all of whom are private parties. De Sales and Vista are private entities that do not qualify as state

actors, and Atanasio and Hill do not work for any state or other government body. Therefore,

Plaintiff has not stated a viable Section 1983 claim against these defendants, and the Court

dismisses the claims against them for failure to state a claim on which relief may be granted. See

28 U.S.C. § 1915(e)(2)(B)(ii).

B. Claims against Justice Ortiz

Judges are absolutely immune from suit for damages for any actions taken within the

scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts

arising out of, or related to, individual cases before the judge are considered judicial in nature.”

Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot

overcome judicial immunity.” Id. (citations omitted). This is because, “[w]ithout insulation from

liability, judges would be subject to harassment and intimidation . . . .” Young v. Selsky, 41 F.3d

47, 51 (2d Cir. 1994).

Plaintiff seeks damages from Justice Ortiz, presumably arising from his judicial role in

Plaintiff’s Housing Court matter in the Civil Court of the City of New York. (See ECF 1, at 57-

58.) These claims appear to concern “acts arising out of, or related to, individual cases before

him,” Justice Ortiz is immune from suit for such claims. Bliven, 579 F.3d at 210. The Court

therefore dismisses Plaintiff’s claims against Justice Ortiz for damages because he is immune

from suit seeking such relief, 28 U.S.C. § 1915(e)(2)(B)(iii), and, consequently, as frivolous, 28

U.S.C. § 1915(e)(2)(B)(i). See Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim

dismissed on the ground of absolute judicial immunity is ‘frivolous’ for purposes of [the in

forma pauperis statute].”).

C. Claims against New York State Department of Health

“[A]s a general rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’

Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).

“The immunity recognized by the Eleventh Amendment extends beyond the states themselves to

state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has

not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not

abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate

Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff’s Section 1983 claims against the DOH,

an arm of the State of New York, are therefore barred by the Eleventh Amendment and are

dismissed. See 28 U.S.C. § 1915(e)(2)(B)(iii).

D. Leave to amend

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and

plain statement showing that the pleader is entitled to relief. Under the Rule, 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.

Plaintiff’s complaint does not comply with Rule 8 because she alleges no facts in her

complaint. In light of Plaintiff’s pro se status, the Court grants her 30 days’ leave to replead her

claims in an amended complaint. Any amended complaint Plaintiff files must comply with Rule

8’s requirement that it include a short and plain statement showing that she is entitled to relief

against each named defendant. Plaintiff should state facts describing how each named defendant

violated her rights.

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.

PRO SE LAW CLINIC

Plaintiff is advised that there is a Pro Se Law Clinic available to assist self-represented

parties in civil cases. The Clinic may be able to provide Plaintiff with advice in connection with

her case. The Pro Se Law Clinic is run by a private organization called the City Bar Justice

Center; it is not part of, or run by, the Court (and, among other things, therefore cannot accept

filings on behalf of the Court, which must still be made by any self-represented party through the

Pro Se Intake Unit).

To make an appointment, Plaintiff must complete the City Bar Justice Center’s intake

form. If Plaintiff has questions about the intake form or needs to highlight an urgent deadline

already disclosed in the form, the clinic can be contacted by phone (212-382-4794) or email

(fedprosdny@nycbar.org). In-person appointments in the Thurgood Marshall Courthouse in

Manhattan and the Charles L. Brieant Jr. Federal Building and Courthouse in White Plains are

available Monday through Thursday, 10am to 4pm. Appointments are also available remotely

Monday through Friday, 10am to 4pm.

CONCLUSION

Plaintiff’s complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), with 30 days’ leave to replead.

The Court directs the Clerk of Court to terminate the motions requesting a hearing and a

protective order as unnecessary. (ECF 9, 18.)

A City Bar Justice Center flyer is attached to this order.

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: April 25, 2025

New York, New York

/s/ Laura Taylor Swain

LAURA TAYLOR SWAIN

Chief United States District Judge

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The Federal Pro Se Legal Assistance Project (Fed Pro) provides limited assistance to self-

represented litigants (plaintiffs and defendants) with cases involving civil legal matters

in the United States District Court for the Southern District of New York (SDNY).

HOW TO SCHEDULE AN APPOINTMENT

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down to " "and then click " "to be taken to the Intake Form.

e When the Intake Form asks: "How can we help you", please select "Federal Court

Case" from the drop-down menu. The Fed Pro SDNY office will receive your

application ONLY if you select "federal court case." If you select anything else, you

will need to re-complete your application.

Once you complete the form, someone will contact you, usually within five business

days, to schedule an appointment. If you are not able to complete the Intake Form,

please call (212) 382-4794, leave a detailed message, and wait for us to call you back,

typically within five business days.

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