Opinion
19-CV-3979 (CM)
05-16-2019
TAMICKO MURRAY McIVER, Plaintiff, v. OASIS HOMELESS SHELTER AND (3) STAFF MEMBERS MALE; NEW ROCHELLE POLICE DEPT., Defendants.
ORDER TO AMEND :
Plaintiff, appearing pro se, brings this action under the Court's federal question jurisdiction, asserting claims of sexual harassment and "physical/mental abuse." (ECF No. 2 ¶ 1.) By order dated May 3, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis 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. 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
Named as Defendants in this complaint are three John Doe staff members of the Oasis shelter in New Rochelle and the New Rochelle Police Department. The complaint contains the following allegations. Plaintiff, who now resides in Mount Vernon, entered the Oasis shelter in December 2018. Oasis employees abused their authority and played "favorites." The night manager, Chris, banged on the door while Plaintiff was using the bathroom and yelled various threats at her and "disrespected, yelled at, and belittled" her. ECF No. 2 at 13.) According to Plaintiff, Chris "scares" and "threatens" her, even though he "knows that [her] husband had abused [her], forcing [her] to "flee for safety."
An employee, Tanya, told Plaintiff that another employee, Ronald, was looking for Plaintiff. Ronald "came onto" Plaintiff and "grabbed" her vagina, and Plaintiff was told that if she called the police she would "forfeit[]" her bed. Ronald approached Plaintiff while she was in her car and offered her marijuana. Attached to the pleading are copies of photographs, but it is unclear what they purport to show or why Plaintiff attaches them. Plaintiff seeks money damages.
DISCUSSION
The Court liberally construes the complaint as alleging constitutional claims under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege both that: (1) a person acting under the color of state law, or a "state actor"; (2) violated a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48-49 (1988); 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.").
A. Oasis Shelter Employees
A private entity's activity can be attributed to the government in three situations: (1) the entity acts using the coercive power of the state or is controlled by the state (the "compulsion test"); (2) the entity willfully participates in joint activity with the state or its functions are entwined with state policies (the "joint action" or "close nexus" test); or (3) the state has delegated a public function to the entity (the "public function" test). Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012). The fundamental question under each test is whether the private entity's challenged actions are "fairly attributable" to the government. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
Providing housing is not a public function because it is not the exclusive province of the state. See, e.g., Okon v. Appia, No. 06-CV-6810 (CPS), 2008 WL 2245431, at *14 (E.D.N.Y. May 29, 2008); George v. Pathways to Housing, Inc., No. 10-CV-9505 (ER), 2012 WL 2512964, at *4 (S.D.N.Y. June 29, 2012) ("It is well established that the provision of low-cost supportive housing is not a 'public function.'"). Moreover, neither government funding nor government regulation suffices for a private entity to be deemed a state actor. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (holding that government must command or encourage the alleged wrongdoing for there to be state action based on licensing or regulation); Kohn, 457 U.S. at 838. The crucial issue is the relationship between the government and the challenged action taken by the private actor, not the relationship between the government and the private entity. George, 2012 WL 2512964, at *4, n.5.
In providing housing to Plaintiff, the Oasis shelter and its employees were not engaged in state action or otherwise acting under color of state law. As reprehensible as the described conduct was, Plaintiff cannot state claims against the Oasis employees under § 1983.
B. New Rochelle Police Department
Under New York law, city agencies or departments do not have the capacity to be sued in their own names. See Fed. R. Civ. P. 17(b); Omnipoint Commc'ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) ("In New York, agencies of a municipality are not suable entities."); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) ("Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued."); see also N.Y. Gen. Mun. Law § 2 ("The term 'municipal corporation,' as used in this chapter, includes only a county, town, city and village."). Plaintiff's claims against the New Rochelle Police Department must be dismissed. 28 U.S.C. § 1915 (e)(2)(B)(ii).
To sue a municipality under § 1983, a plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted). Plaintiff's complaint does not contain any allegations suggesting that Plaintiff can state a municipal liability claim against the City of New Rochelle. --------
LEAVE TO AMEND
The Court grants Plaintiff leave to file an amended complaint to address the deficiencies in her original pleading. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated her federally protected rights; what facts show that her federally protected rights were violated; when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief. Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 19-CV-3979 (CM). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002.
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. Dated: May 16, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ Write the full name of each plaintiff. -against- __________ Write the full name of each defendant. If you need more space, please write "see attached" in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section II. ___CV__________
(Include case number if one has been assigned)
AMENDED COMPLAINT
Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. BASIS FOR JURISDICTION
Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case?
[ ] Federal Question
[ ] Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated? __________
B. If you checked Diversity of Citizenship
1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , __________ (Plaintiff's name), is a citizen of the State of __________ (State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of __________. If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff. If the defendant is an individual: The defendant, __________ (Defendant's name), is a citizen of the State of __________ or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of __________. If the defendant is a corporation: The defendant, __________, is incorporated under the laws of the State of __________ and has its principal place of business in the State of __________ or is incorporated under the laws of (foreign state) __________ and has its principal place of business in __________. If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.
II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed. __________
First Name __________
Middle Initial __________
Last Name __________
Street Address __________
County, City __________
State __________
Zip Code __________
Telephone Number
__________
Email Address (if available)
B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1:
__________
First Name
__________
Last Name
__________
Current Job Title (or other identifying information)
__________
Current Work Address (or other address where defendant may be served)
__________
County, City
__________
State
__________
Zip Code Defendant 2:
__________
First Name
__________
Last Name
__________
Current Job Title (or other identifying information)
__________
Current Work Address (or other address where defendant may be served)
__________
County, City
__________
State
__________
Zip Code Defendant 3:
__________
First Name
__________
Last Name
__________
Current Job Title (or other identifying information)
__________
Current Work Address (or other address where defendant may be served)
__________
County, City
__________
State
__________
Zip Code Defendant 4:
__________
First Name
__________
Last Name
__________
Current Job Title (or other identifying information)
__________
Current Work Address (or other address where defendant may be served)
__________
County, City
__________
State
__________
Zip Code
III. STATEMENT OF CLAIM
Place(s) of occurrence: __________ Date(s) of occurrence: __________
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. __________
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. __________
IV. RELIEF
State briefly what money damages or other relief you want the court to order. __________
V. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. __________
Dated
__________
Plaintiff's Signature __________
First Name __________
Middle Initial __________
Last Name __________
Street Address __________
County, City __________
State __________
Zip Code __________
Telephone Number
__________
Email Address (if available) I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
[ ] Yes [ ] No
If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.