Antonetti

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CARLOS A. ANTONETTI,

Plaintiff,

v.

MEMORANDUM AND ORDER

HEAVY WOODS BAR, JOHN DOE, and JOHN

25-cv-00661-LDH-JRC

DOES

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Carlos A. Antonetti (“Plaintiff”), proceeding pro se, brings the instant action against

Henry Woods Bar (the “Bar”), John Doe, and John Does (together, “Defendants”), asserting

claims for discrimination, harassment, and assault, pursuant to 42 U.S.C. § 1983, and Title II of

the Civil Rights Act of 1964 (“Title II”), 42 U.S.C. § 2000a. Plaintiff’s request to proceed in

forma pauperis, pursuant to 28 U.S.C. § 1915, is granted. For the reasons set forth below, the

complaint is dismissed.

BACKGROUND1

On April 11, 2024, Plaintiff, a Latino man, went to the Henry Woods Bar located in

Brooklyn, New York. (Compl. at 2-3, ECF No. 1.) At the Bar, Plaintiff conversed with a friend,

by phone, in Spanish. (Id. at 2.) Plaintiff was served two drinks at the Bar and requested a third

drink. (Id. at 3.) According to the Complaint, the bartender refused to serve Plaintiff a third

drink, asked him to leave the bar, and struck him in the back of the head with an unknown object,

1 The following allegations are taken from the complaint and are assumed to be true for the purpose of this opinion.

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rendering Plaintiff unconscious. (Id.) Plaintiff states that the purported assault resulted in

dizziness, a bump and bruise on his head, and bleeding. (Id.) Plaintiff did not seek immediate

medical attention, but he sought care for his injuries at a hospital approximately one month after

the alleged incident. (Id.) Thereafter, Plaintiff submitted a police report to officers at the 83rd

Precinct of the New York City Police Department (“NYPD”). (Id. at 3-4.) Plaintiff alleges that,

as a result of the incident, he suffers continued injuries, including “[f]requent and constant

headaches[;] strong migraines[;] dizziness[;] . . . frequent [and] strong earaches[;] . . . discomfort

[in his] right shoulder and arm[;] frequent discomfort[,] pains[,] numbness[,] and stiffness[;] []

loss of high frequency hearing on both ears[;] . . . [and] blurred vision.” (Id. at 4.) Plaintiff

seeks monetary damages in the amount of $65,000. (Id. at 4.)

STANDARD OF REVIEW

A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the alleged

facts allow the court to draw a “reasonable inference” of a defendant's liability for the alleged

misconduct. Iqbal, 556 U.S. at 678. While this standard requires more than a “sheer possibility”

of a defendant's liability, id., “[i]t is not the [c]ourt's function to weigh the evidence that might be

presented at trial” on a motion to dismiss, Morris v. Northrop Grumman Corp., 37 F. Supp. 2d

556, 565 (E.D.N.Y. 1999). Instead, “the [c]ourt must merely determine whether the complaint

itself is legally sufficient, and in doing so, it is well settled that the [c]ourt must accept the factual

allegations of the complaint as true.” Id. (internal citation omitted).

Where, as here, a plaintiff is proceeding pro se, his pleadings “must be construed liberally

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and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723

F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474

(2d Cir. 2006)). This is “particularly so when the pro se plaintiff alleges that [his or her] civil

rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.

2008). Still, “even pro se plaintiffs asserting civil right claims cannot withstand a motion to

dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief

above the speculative level.’” Jackson v. NYS Dep't of Labor, 709 F. Supp. 2d 218, 224

(S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555).

Further, an in forma pauperis action shall be dismissed where the Court determines that

the action: “(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). “An action is frivolous if it lacks an arguable basis in law or fact—i.e.,

where it is ‘based on an indisputably meritless legal theory’ or presents ‘factual contentions

[which] are clearly baseless.’” Scanlon v. Vermont, 423 Fed. Appx. 78, 79 (2d Cir. 2011)

(summary order) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989) (alteration in original));

see also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (“[A] finding of factual frivolousness

is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

whether or not there are judicially noticeable facts available to contradict them.”).

DISCUSSION

I. Plaintiff’s Section 1983 Claims

Section 1983 imposes liability “only for conduct which ‘subjects, or causes to be

subjected’ the complainant to a deprivation of a right secured by the Constitution and laws.”

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Rizzo v. Goode, 423 U.S. 362, 370–71 (1976); see also 42 U.S.C.A. § 1983 (“[E]very person

who, under color of [law] . . . subjects, or causes to be subjected, any . . . person within the

jurisdiction [of the United States] to the deprivation of any rights . . . secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity. suit in equity, or

other proper proceeding for redress . . . . ”). Of relevance here, “[t]o state a claim under . . . §

1983, [a] plaintiff[] must allege, inter alia, that the wrongful conduct was committed by a person

acting under color of state law.” Schindler v. French, 232 F. App'x 17, 19 (2d Cir. 2007) (citing

Johnson v. Goord, 445 F.3d 532, 534 (2d Cir.2006)). “[T]he under-color-of-state-law element of

§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or

wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quotations omitted).

Here, Plaintiff asserts claims against John Doe and John Does, private individuals, as

well as the Bar, a private entity. (Compl.) Plainly, Defendants’ purported conduct is private, as

opposed to that of a state actor.2 Plaintiff’s § 1983 claims therefore fail and are dismissed,

accordingly. See Schindler, 232 F. App'x at 19; Am. Mfrs. Mut. Ins. Co., 526 U.S. at 50.

II. Plaintiff’s Title II Claims

Title II prohibits discrimination in the provision of “goods, services, facilities, privileges,

advantages, and accommodations of any place of public accommodation,” such as a hotel,

restaurant, or theater. 42 U.S.C. § 2000a(a)-(b). The “overriding purpose” of Title II “is to

2 “For purposes of § 1983, [private individuals or] a private entity [can] act[] under color of state law 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.’” Zhi

Guo v. Indep. Chinese Pen Ctr. Inc., 662 F. App'x 9, 10 (2d Cir. 2016) (quoting McGugan v. Aldana–Bernier, 752

F.3d 224, 229 (2d Cir. 2014)). “The fundamental question . . . is whether the private [individuals’ or] entity’s

challenged actions are fairly attributable to the state.” Id. (first alteration in original) (quoting McGugan, 752 F.3d

at 229). However, Plaintiff does not allege any facts sufficient to satisfy any of the three standards for “fairly

attribute[ing]” private conduct to the state.

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remove the daily affront and humiliation involved in discriminatory denials of access to facilities

ostensibly open to the general public.” Gilmore v. Amityville Union Free Sch. Dist., 305

F.Supp.2d 271, 278 (E.D.N.Y. 2004) (internal quotation marks omitted) (alteration accepted)

(quoting Daniel v. Paul, 395 U.S. 298, 307-08 (1969)). Of relevance here, Title II of the Civil

Rights provides that:

[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of any place of public

accommodation . . . without discrimination or segregation on the ground of race,

color, religion, or national origin.

42 U.S.C. § 2000a(a).

To state a claim under Title II, Plaintiff must “allege facts showing (1) that he was

deprived of equal use and enjoyment of a place of public accommodation and (2) facts which

demonstrate discriminatory intent.” Akyar v. TD Bank US Holding Co., No. 18-CV-379, 2018

WL 4356734, at *5 (S.D.N.Y. Sept. 12, 2018). It is well established, however, that individual

plaintiffs cannot recover damages for claims brought under Title II; rather, only injunctive relief,

along with reasonable attorney’s fees, is available as a remedy. Newman v. Piggie Park Enters.,

Inc., 390 U.S. 400, 401-02 (1968).

Here, Plaintiff alleges that the bartender refused to serve him a third drink, asked him to

leave the Bar, and ultimately assaulted him. (Compl. at 3.) Plaintiff alleges that the bartender’s

conduct was motivated by the fact that he “heard Plaintiff speaking Spanish . . . and because of

[Plaintiff’s] Spanish nationality and skin tone.” (Id. at 3.) In short, Plaintiff avers that the

treatment he suffered was due to his race and nationality. (Id. at 3, 4). As relief, Plaintiff seeks

monetary damages in the amount of $65,000. (Id. at 4.) However, because monetary damages

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cannot be recovered under Title II, Plaintiff cannot recover the relief that he seeks—that is,

monetary damages. Newman v. Piggie Park Enters., Inc., 390 U.S. at 401-02. Accordingly,

Plaintiff’s Title II claims are dismissed.3 See 28 U.S.C. § 1915(e)(2)(B)(ii).

LEAVE TO AMEND

The Second Circuit has held that leave to replead should be liberally granted to pro se

litigants. See Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se

complaint generally should not be dismissed without granting the plaintiff leave to amend at least

once ....”); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[B]ut amendment

should be denied where the complaint gives no ‘indication that a valid claim might be stated.’”

McKie v. Kornegay, No. 21-1943, 2022 WL 4241355, *3 (2d Cir. Sept. 15, 2022) (quoting

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Here, the Court concludes that granting

leave to amend would be futile and declines to do so.

CONCLUSION

For the foregoing reasons, the complaint is dismissed in its entirety for failure to state a

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

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and, therefore, in forma pauperis status is denied for the purpose of any appeal.

3 Even assuming that monetary damages could be recovered under Title II, to the court’s knowledge, no

case in this Circuit has determined that a bar or tavern, particularly one whose principle business is the

sale of alcoholic beverages and in which little or no food is served, like the defendant-bar, is a covered

establishment under 42 U.S.C. § 2000a. See 42 U.S.C. § 2000a(b)(2) (listing as places of

accommodation: “any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility

principally engaged in selling food for consumption on the premises, including, but not limited to, any

such facility located on the premises of any retail establishment; or any gasoline station”); Seidenberg v.

McSorleys' Old Ale House 308 F. Supp. 1253, 1255-1256 (S.D.N.Y. 1969) (citing Cuevas v. Sdrales, 344

F.2d 1019, 1022-23 (10th Cir. 1965).

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

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

November 4, 2025 LASHANN DEARCY HALL

United States District Judge

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