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holding that plaintiff failed to state a § 1983 claim based on allegations that the defendants gave the police false information "out of malice and in an effort to get [the plaintiff] ejected from the home he was renting" where plaintiff failed to "allege facts suggesting that defendants and the police had any meeting of the minds or intent to conspire"
Summary of this case from Herman v. City of N.Y.Opinion
08 Civ. 3875 (DLC).
December 16, 2008
For Plaintiff: Nkereuwem Umoh, Brooklyn, NY
For Defendants Vivian Pecoraro and Francesco Turdo: Robert Feldman, New York, NY
OPINION ORDER
Plaintiff Wilfredo Valez brings this civil rights action against defendants Francesco Turdo and Vivian Pecoraro, alleging that Turdo and Pecoraro gave false information to the police in an effort to have Valez ejected from the home he was renting from the defendants. Turdo and Pecoraro have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint against them. Because Valez has not sufficiently alleged that Turdo and Pecoraro were acting under the color of state law, the motion is granted as to Valez's federal claims, and this Court declines to exercise supplemental jurisdiction over the remaining state law claims.
BACKGROUND
DISCUSSION
inter 42 U.S.C. § 1983 I12 McCarthy v. Dun Bradstreet Corp. 482 F.3d 184191Achtman v. Kirby, McInerney Squire, LLP 464 F.3d 3283378Leibowitz v. Cornell Univ.445 F.3d 586591 Dura Pharms., Inc. v. Broudo 544 U.S. 336347Boykin v. KeyCorp521 F.3d 202213ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. 493 F.3d 8798Sira v. Morton380 F.3d 5767 Singer v. Fulton County Sheriff63 F.3d 110 119
Valez's complaint also named as defendants the City of New York, police officer Gianpaol Dilisio, and Jane and John Does 1-10 (collectively "the City defendants"). The City defendants informed the Court, by letter dated October 17, 2008, that they had reached a settlement agreement with Valez.
Valez has withdrawn claims of intentional infliction of emotional distress and negligence.
Defendants have submitted a host of improper materials for consideration in connection with this motion, including affidavits controverting the factual allegations in Valez's complaint, and documents that are not incorporated by reference or integral to Valez's complaint. In deciding this motion, this Court has considered only the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002) (explaining that courts may choose between excluding material extraneous to the complaint and deciding the motion as one for summary judgment).
Defendants Turdo and Pecoraro have not yet filed a responsive pleading, so under Fed.R.Civ.P. 15(a), Valez would be entitled to amend his complaint once as a matter of right. The scheduling order in this case (set down before Turdo and Pecoraro made any appearance in this action), however, set September 5, 2008, as the time limit for amending pleadings, and "amendment of a pleading as a matter of course pursuant to Rule 15(a) is subject to the district court's discretion to limit the time for amendment of the pleadings in a scheduling order issued under Rule 16(b)." Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). "[A] district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause," and "a finding of `good cause' depends on the diligence of the moving party." Parker v. Columbia Pictures Industries, 204 F.3d 326, 340 (2d Cir. 2000). In this case, given that defendants Turdo and Pecoraro did not answer the complaint in the time prescribed by the Federal Rules of Civil Procedure, and did not appear in this case until they were ordered to show cause, on September 19, 2008, why a default judgment should not be entered against them, plaintiff has shown the requisite diligence to allow an amendment of the pleadings after the September 5 date for good cause, and amendment at this stage in the proceedings will not prejudice defendants. See id. at 244.
B. Section 1983 and State Action
In order to state a claim under § 1983, a plaintiff must allege that he was injured by "either a state actor or a private party acting under color of state law." Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). "If a defendant's conduct satisfies the state action requirement under the Fourteenth Amendment, then that conduct also constitutes action `under color of' state law for purposes of § 1983." Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004).
[S]tate action requires both an alleged constitutional deprivation caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation must be a person who may fairly be said to be a state actor.Cranley v. National Life Ins. Co. of Vermont, 318 F.3d 105, 111 (2d Cir. 2003) (citation omitted).
For private activity to be deemed state action, there must be "a sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the State itself." Tancredi, 378 F.3d at 229 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
A challenged activity by a private entity may be deemed state action when the state exercises coercive power, is entwined in [the] management or control of the private actor, or provides the private actor with significant encouragement, either overt or covert, or when the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies.Cranley, 318 F.3d at 112 (citation omitted) (emphasis supplied);see also United States v. Stein, 541 F.3d 130, 147 (2d Cir. 2008).
In Dahlberg v. Becker, 748 F.2d 85, 92 (2d Cir. 1984), the Second Circuit examined the "joint activity" theory of state action. The court noted that in cases finding joint activity sufficient to support deeming private activity state action, the private actors and agents of the state "carried out a deliberate, previously agreed upon plan," or their activity "constitute[d] a conspiracy or meeting of the minds." Id. at 93. A complaint that merely alleged that the private actors acted "in concert with state and county officials to imprison plaintiff" was not enough to allege joint participation so as to satisfy the state action requirement; a "meeting of the minds or intent to conspire" between the private defendants and state actors was necessary. Id.; see also Ciambriello, 292 F.3d at 324 ("A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity.").
Similarly, furnishing information to the police "does not by itself make [someone] a joint participant in state action under Section 1983." Ginsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 272 (2d Cir. 1999); see also Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352 (7th Cir. 1985) ("[P]roviding false information to an arresting officer is not, by itself, sufficient to state a claim against [a] private party under § 1983."). The court in Ginsberg noted that where "a police officer exercises independent judgment in how to respond to a private party's legitimate request for assistance, the private party is not `jointly engaged' in the officer's conduct so as to render it a state actor under Section 1983." Ginsberg, 189 F.3d at 272. Even though a complainant may "stand to benefit" from an officer's actions, without proof of a "plan, prearrangement, conspiracy, custom, or policy" between the complainant and law enforcement authorities, the complainant is not acting under color of state law. Id. at 272-73 (citation omitted).
Valez's complaint fails to allege facts from which it could be found that Turdo and Pecoraro acted under the color of state law, as it does not allege facts suggesting that defendants and the police had any meeting of the minds or intent to conspire. The complaint alleges merely that the police arrested Valez "on orders of plaintiff's landlord," that the police "failed to properly investigate the [landlords'] claims," and that "Defendants conspired among themselves to deprive plaintiff of his constitutional rights." These conclusory allegations are insufficient to give Turdo and Pecoraro fair notice of the ground for asserting that they were state actors and for making a plausible claim that they undertook the joint activity with the police required to state such a claim.
Valez has submitted an affidavit with respect to the instant motion that alleges several facts that are not mentioned in his complaint. While it is improper to consider such an affidavit on a motion to dismiss, see Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988), even if this Court were to construe the affidavit as part of the requested amendment of the complaint (which it was not), see id., none of facts asserted there would change the analysis. The affidavit states that the defendants "worked closely with the police, demanding that [Valez] be arrested." Even drawing all inferences in favor of the plaintiff on this motion to dismiss, such an allegation is too conclusory to allege the level of joint participation required to find that private defendants acted under the color of state law.
Valez cites Harris v. Security Co. of 1370 Sixth Ave., No. 94 Civ. 2599(JGK), 1996 WL 556927, at *3 (S.D.N.Y. Oct. 1, 1996), as support for his contention that the defendants' actions should properly be viewed as state action. In Harris the court stated, in the context of a private store security guard who called the police, leading to the plaintiff's arrest, that "[w]hen a security guard detains suspects for subsequent arrest by the police, joint activity with the state occurs when the police arrest the suspect solely based on the security guard's request, without making any independent investigation of the matter." Id. (citation omitted). Harris goes on, however, to state that for state action to be found "there must be more than a general understanding that the security guards can call the police for assistance," and it cites for support cases which state that in order for private action to be deemed state action, it must be shown that there was some plan or policy in place whereby the police would substitute the private actor's judgment for their own. See, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435 (7th Cir. 1986) ("[S]hopkeepers are engaged in `state action' when they strike a deal with the police under which the police simply carry out the shopkeepers' directions. If the police promise to arrest anyone the shopkeeper designates, then the shopkeeper is exercising the state's function and is treated as if he were the state."); see also Ginsberg, 189 F.3d at 271 (state action sufficiently alleged by allegation that "Police Department has a custom, practice or policy of dispatching officers to [store owner's] premises when its customers are dissatisfied with their service" (citation omitted)).
Here, Valez alleges in conclusory fashion that the police arrested Valez on "orders" from the defendants and failed to perform their investigation "properly." There is no allegation, however, of any facts to support the inference that there was any plan or policy by which the police would substitute their own judgment for that of these two defendants; as such, the complaint does not allege the requisite joint participation needed to deem defendants' actions those of the state.
Instead, this case more closely resembles another case in this district where the court dismissed the complaint because it did not allege that the defendants acted under color of state law. InVazquez v. Combs, 04 Civ. 4189(GEL), 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22, 2004), the court described the complaint as follows:
[T]he core of plaintiff's allegations against Combs and Bad Boy [the private defendants], read in the light most favorable to him, is that they falsely reported him to the police for harassing Combs and stealing his Grammy, and asked that [plaintiff] be investigated or questioned about these alleged crimes.Id. The court noted, however, that "merely filing a complaint with the police, reporting a crime, requesting criminal investigation of a person, or seeking a restraining order, even if the complaint or report is deliberately false, does not give rise to a claim against the complainant for a civil rights violation." Id. (citation omitted). The court found that plaintiff's complaint did not adequately allege the requisite conspiracy or joint participation to support a finding of state action because
plaintiff here points to no relationship between the private defendants and [the police officer], no statements made by the private defendants that they had special connections with the police or that they could use the police to pursue their private ends (through means other than simply reporting an alleged crime to the police, which does not constitute inappropriate use of law enforcement by a private party), no statements or acts by [the police officer] that indicate that she was doing anything other than investigating a complaint of possible criminal activity. Plaintiff's conclusory statements of his own opinion, such as "it became apparent that . . . [the police officer] was now going to be Combs [sic] personal detective to squeeze out of plaintiff the whereabouts of the missing Grammy," cannot correct these deficiencies in the factual allegations of the Complaint.Id. at *5. As the instant complaint suffers from the same deficiencies, Valez has not adequately alleged that the defendants acted under color of state law, and as such, the § 1983 claims must be dismissed.
As there are no longer any federal claims against the defendants in this suit, it is within the Court's discretion whether to exercise supplemental jurisdiction over Valez's remaining state law claims. See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 304-06 (2d Cir. 2003). Since this action has not yet proceeded to the merits of Valez's claims, this Court declines to exercise supplemental jurisdiction.
CONCLUSION
Defendants' October 15, 2008 motion to dismiss is granted as to plaintiff's federal claims, and plaintiff's state law claims are dismissed without prejudice.
SO ORDERED: