Opinion
22-CV-1472 (LTS)
12-19-2022
DIANA HAREWOOD-BEY, et al, Plaintiffs, v. PRESIDENT JOE BIDEN, et al, Defendants.
ORDER
LAURA TAYLOR SWAIN, Chief United States District Judge
Plaintiff Diana Harewood-Bey, who is proceeding pro se, filed this action on behalf of herself, Lisa Warburton-El, and the Federation Moorish Science Temple of America. She alleges that Defendants violated their religious rights. On August 12, 2022, the Court directed Plaintiff to amend her complaint within 60 days, to address deficiencies in her pleadings. Plaintiff filed an amended complaint on September 15, 2022. For the reasons set forth below, the Court grants Plaintiff leave to file a second amended complaint within 30 days of the date of this order.
BACKGROUND
The Court assumes familiarity with the underlying facts of this case as summarized in the Court's August 12, 2022, order. Plaintiff Harewood-Bey commenced this action by filing a complaint captioned for the New York Supreme Court, Westchester County, in the United States District Court for the Eastern District of Pennsylvania. She sought to bring claims on behalf of herself, Lisa Warburton-El, and the Federation Moorish Science Temple of America (“Moorish Science Temple”) against President Joe Biden, New York Governor Kathy Hochul, Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch, Mayor Bill de Blasio, the Floral Agency, Biljiana Stodjadinovic, and Marie Kingsley. On January 24, 2021, the United States District Court for the Eastern District of Pennsylvania transferred the matter to this Court because most of the parties named in the complaint are in the Southern District of New York.
Plaintiff's claims were not clearly stated, but her complaint and supporting exhibits suggested that she was seeking to hold the Defendants liable for the termination of her employment after her employer denied her a religious exemption from the COVID-19 vaccine and she refused to get vaccinated. In the August 12, 2022, order, the Court took the following actions: (1) determined that Colorado River abstention was not warranted in this case although Plaintiff had a state-court case pending with the same claims; (2) dismissed without prejudice all claims asserted on behalf of Lisa Warburton-El and the Moorish Science Temple because, as a non-attorney, Plaintiff could not bring claims on behalf of others; (3) held that Plaintiff failed to comply with Rule 8 of the Federal Rules of Civil Procedure because she did not provide a short and plain statement showing that she is entitled to relief or alleging facts suggesting that any defendant violated her rights; and (4) dismissed Plaintiff's claims against President Biden and Justices Thomas, Alito, and Gorsuch because they enjoy immunity from suit. The Court, however, granted Plaintiff leave to file an amended complaint within 60 days, to allege the events giving rise to her claims and to state facts showing how each defendant was personally involved in the alleged deprivations.
In the amended complaint, Plaintiff again brings claims on behalf of Lisa Warburton-El and the Moorish Science Temple and names as defendants President Biden and Justices Thomas, Alito, and Gorsuch, along with Marie Kingsley, Biljana Stajadinovic, and the Floral Agency. She claims that Defendants violated her religious rights under the First Amendment's Free Exercise Clause and the Religious Freedom and Restoration Act (RFRA), 42 U.S.C. §§ 2000bb, et seq. (ECF 11, at 2.) Plaintiff alleges that the “NY health system” has violated her “religious freedom and free expression of religion” and “placed a severe burden and hardship on [her]” by rejecting her request for a religious exemption from the COVID-19 vaccine. (Id. at 6-7.) Plaintiff asserts that because she “knows by the Holy Scripture that there is no greater protection than the covering that Allah and [the] Prophet Noble Drew Ali provided for [her] through faith in Him,” that she “politely and respectfully decline[d] the covid vaccine on the job by signing a [r]efusal to consent to the vaccination on 12-29-2020.” (Id. at 7.) She contends that this is a new type of vaccine with unknown side effects and that the “pharmaceuticals [] have a complete immunity should people die or become paralyzed, injured etc.[,]” and that someone should be held “legally liable for forcing this new type of vaccine.” (Id.) Plaintiff then goes on to describe her rights as a member of the Moorish Science Temple, and refers to a series of news articles concerning the Supreme Court's rejection of challenges to vaccine mandates, including New York's, and publications on the effects of the COVID-19 vaccines. Plaintiff also attaches to the amended complaint news articles and other publications about the vaccines.
Plaintiff asserts that the defendants have “injured [her] psychologically by causing physical stress unintentionally” and she “request[s] cessation of molestation of right of religious expression and right of conscience.” (Id. at 54.) She also seeks money damages.
DISCUSSION
A. Plaintiff fails to remedy noted deficiencies
Plaintiff's amended complaint fails to remedy the deficiencies of the original complaint that were identified in the Court's August 12, 2022, order to amend. First, as previously stated, because Plaintiff is not an attorney, she cannot bring claims on behalf of Warburton-El or the Moorish Science Temple. Second, Plaintiff's claims cannot proceed against President Biden or Justices Thomas, Alito, and Gorsuch because they cannot be held liable for their presidential or judicial actions in connection with the COVID-19 vaccines. Plaintiff's claims against these defendants are foreclosed by absolute presidential and judicial immunity. For the reasons stated in the August 12, 2022, order, the Court again dismisses as parties from this action Warburton-El, the Moorish Science Temple, President Biden, and Justices Thomas, Alito, and Gorsuch.
Further, Plaintiff fails to provide a short and plain statement showing that she is entitled to relief as required by Rule 8, or include any facts suggesting that any of the remaining named defendants violated her rights. Plaintiff asserts that the New York health care system violated her rights under the Free Exercise Clause of the First Amendment and RFRA, by issuing a vaccine mandate. She further alleges that her employer denied her a religious exemption from the COVID-19 vaccine and that she refused to get vaccinated. Plaintiff does not, however, name any state actors as defendants with respect to her claims. Rather, her remaining defendants - the Floral Agency, Kinsley, and Stajadinovic - appear to be associated with her employment, but the Court cannot be certain, because Plaintiff provides no facts about her employment or what these defendants did to violate her rights.
B. Plaintiff cannot proceed under RFRA
Plaintiff cannot proceed with a claim under RFRA against the remaining defendants or any state actors. RFRA prohibits the federal government from “substantially burdening” a person's exercise of religion, “even if the burden results from a rule of general applicability,” unless the Government can demonstrate that application of the burden (1) furthers a compelling interest; and (2) is the least restrictive means of furthering that interest. Gonzales v. O'Centro Espirata Benificiente Uniao do Vegetal, 546 U.S. 418 (2006) (citing 42 U.S.C. § 2000bb-1(a)). RFRA, however, does not regulate conduct by state actors because the Supreme Court invalidated RFRA as applied to states and their subdivisions. See City of Boerne v. Flores, 521 U.S. 507, 515-516 (1997); see also Holt v. Hobbs, 574 U.S. 352, 357 (2015) (RFRA exceeded Congress' power under Section 5 of the Fourteenth Amendment.). RFRA remains operative only as to the federal government. See Cutter v. Wilkinson, 544 U.S. 709, 715 n.2 (2005). Because Plaintiff brings claims concerning New York's vaccine mandate, a claim under RFRA is not implicated. Plaintiff's RFRA claim therefore must be dismissed for failure to state a claim on which relief may be granted.
C. Plaintiff fails to state a Free Exercise Clause claim
Plaintiff next contends that Defendants violated the Free Exercise Clause of the First Amendment.Constitutional claims, such as Plaintiff's Free Exercise claim under the First Amendment, must be brought 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). Private parties are generally not liable under the statute. Sykes v. Bank of America, 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.”). Plaintiff does not allege any facts in the amended complaint suggesting that the remaining defendants are state actors or were otherwise involved in state action. See Nyamoti v. Mount Sinai Hosp., No. 21-CV-8020 (JPO), 2022 WL 3156182, at *3 (S.D.N.Y. Aug. 8, 2022). (“To make out a constitutional claim under Section 1983, a plaintiff must first establish that the challenged conduct constitutes state action.”) (citation and internal quotation marks omitted). Because Plaintiff does not allege any facts from which the Court can infer anything about the Floral Agency, Kinsley, or Stajadinovic, much less state action, she fails to state a Free Exercise claim against these defendants.
“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” Espinoza v. Mont. Dep't of Revenue, 140 S.Ct. 2246, 2254, (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep't of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”). A plaintiff may state a free exercise violation by alleging facts “showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not neutral or generally applicable.” Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2422 (2022) (citation and internal quotation marks omitted). If a plaintiff is able to make such a showing, the government must then “satisfy strict scrutiny by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” Id. (citation and internal quotation marks omitted). “[L]aws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.” Fulton v. City of Phila., Penn., 141 S.Ct. 1868, 1876 (2021).
D. Plaintiff's claims may implicate Title VII of the Civil Rights Act of 1964
Plaintiff's alleged religious discrimination claims arising from her employment may implicate a claim under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17. Title VII makes it unlawful for an employer “to discharge . . . or otherwise to discriminate against any individual” in his or her employment “because of such individual's . . . religion.” 42 U.S.C. § 2000e-2(a)(1). The statute also requires employers to offer reasonable religious accommodations that do not cause undue hardship. See 42 U.S.C. § 2000e(j).
1. Pleading requirements
At the pleading stage in a Title VII employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment action against her, and (2) her race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. at 87.
Plaintiff alleges that she declined to take the vaccine, which led to the termination of her employer. However, she does not allege facts showing that her religion was the motivating factor in the employment decision. Should she choose to proceed with a claim under Title VII, Plaintiff must allege facts suggesting that her employer fired her because of her religion.
2. Individuals cannot be sued under Title VII
If Plaintiff chooses to pursue claims under Title VII, she should note that individuals are not subject to liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“[I]ndividual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII.”), abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S. 742 (1998). However, an individual “who actually participates in the conduct giving rise to the discrimination claim may be held personally liable” under state law, such as the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297. Tomka, 66 F.3d at 1317; see Feingold v. New York, 366 F.3d 138, 158 n.19 (2d Cir. 2004). Therefore, if Plaintiff chooses to sue any individual defendant for employment discrimination, she must allege facts explaining how each named individual defendant actually participated in the conduct giving rise to her discrimination claims in violation of state law.
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state-law claims when it “ has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Because it is not clear whether Plaintiff can state any federal claims, the Court will determine at a later stage whether or not to exercise supplemental jurisdiction over any state-law claims Plaintiff seeks to raise. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental state-law claims where no federal claims remained).
3. Exhaustion of administrative remedies
Before filing suit under Title VII, a plaintiff must file a timely charge with the Equal Employment Opportunity Commission (EEOC) or appropriate state or local agency, and obtain a Notice of Right to Sue from the EEOC. See 42 U.S.C. § 2000e-5(e)(1). A plaintiff must commence a civil action within 90 days of receipt of notice of dismissal or termination of proceedings by the EEOC. See id. § 2000e-5(f)(1); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984).
The exhaustion of these administrative remedies is not, however, a jurisdictional requirement, but rather, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019) (“Title VII's charge-filing instruction is not jurisdictional....”); Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018) (“[T]he burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense.”).
Plaintiff does not explain in her complaint whether she has done anything to pursue a Title VII claim, including the exhaustion of her administrative remedies. If Plaintiff has exhausted her administrative remedies with the EEOC, she should complete the relevant section on the second amended complaint form, which includes questions addressing administrative remedy exhaustion.
E. Plaintiff is granted leave to amend
The Court dismisses as parties from this action Plaintiff Warburton-El and the Moorish Science Temple, and Defendants President Biden, and Justices Thomas, Alito, and Gorsuch. The Court also dismisses Plaintiff's RFRA and Free Exercise claims. The Court grants Plaintiff leave to submit a second amended complaint to provide facts that may state a claim against the Floral Agency under Title VII, or against any of the remaining defendants under any other relevant statute. In the amended complaint, Plaintiff must describe what each defendant did or failed to do to violate her rights. She should limit her assertions only to the facts leading to the termination of her employment. If Plaintiff persists in naming in the second amended complaint any of the parties that have been dismissed from this action, the Court will summarily dismiss the second amended complaint.
In the “Statement of Claim” section of the second amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting her employment discrimination claims. Plaintiff should include all of the information in the second amended complaint that Plaintiff wants the Court to consider in deciding whether the second amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's second amended complaint should tell the Court: who violated her federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief.
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently available only by telephone.
Because Plaintiff's second amended complaint will completely replace, not supplement, the amended complaint, any facts or claims that Plaintiff wants to include from the amended complaint must be repeated in the second amended complaint.
CONCLUSION
The Court dismisses without prejudice all claims asserted on behalf of Lisa Warburton-El and the Federation Moorish Science Temple of America. The Court also dismisses Plaintiff's claims against President Biden and Justices Thomas, Alito, and Gorsuch based on absolute immunity.
Plaintiff is granted leave to file a second amended complaint that complies with the standards set forth above. Plaintiff must submit the second amended complaint to this court's Pro Se Intake Unit within 30 days of the date of this order, caption the document as a “Second Amended Complaint,” and label the document with docket number 22-CV-1472 (LTS). A Second Amended Complaint for Employment Discrimination form and a Second Amended Civil Rights Complaint form are attached to this order. Plaintiff must complete the form that is relevant to her claims and submit it to the court. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, this action will be dismissed for failure to state a claim upon which relief may be granted.
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 in forma pauperis 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).
SO ORDERED.