Satish Emrit v. National Grid, Inc & Community Action Partnership of Providence (Capp)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

D. Mass.September 22, 2016

1 {Client Files/140702/0360/PLD/03849585.DOCX;1} UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS RONALD SATISH EMRIT, Plaintiff v. NATIONAL GRID, INC. ET AL., Defendants ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:14-CV-14769-GAO DEFENDANT NATIONAL GRID USA’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Defendant National Grid USA1 (misnamed) (hereafter “National Grid”) hereby moves this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff Ronald Satish Emrit’s Complaint for failure to state a claim upon which relief can be granted. As grounds for this Motion, National Grid relies on the Memorandum of Law filed herewith. DEFENDANT NATIONAL GRID USA, By Its Attorneys, /s/ David Viens David Viens (BBO #664281) BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Telephone: 508-926-3403 Facsimile: 508-929-3104 E-mail: dviens@bowditch.com 1 The caption of Plaintiff’s Complaint references “National Grid, Inc.,” but Plaintiff’s summons was directed to National Grid USA. Case 1:14-cv-14769-GAO Document 30 Filed 09/22/16 Page 1 of 2 2 {Client Files/140702/0360/PLD/03849585.DOCX;1} LOCAL RULE 7.1(A)(2) CERTIFICATION I hereby certify that I have attempted to confer with Plaintiff in good faith to resolve or narrow the issues presented in this Motion. CERTIFICATE OF SERVICE I certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on September 22, 2016. /s/ David Viens David Viens Case 1:14-cv-14769-GAO Document 30 Filed 09/22/16 Page 2 of 2 1 {Client Files/140702/0360/PLD/03805803.DOCX;2} UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS RONALD SATISH EMRIT, Plaintiff v. NATIONAL GRID, INC. ET AL., Defendants ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:14-CV-14769-GAO MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NATIONAL GRID USA’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Defendant National Grid USA1 (misnamed) (hereafter “National Grid”) moves this Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff Ronald Satish Emrit’s (“Plaintiff”) Complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, National Grid respectfully requests that this Court dismiss Plaintiff’s Complaint. BACKGROUND Defendant National Grid is a gas and electric utility company. Compl., ¶ 14. Defendant Community Action Partnership of Providence (“CAPP”)2 is a Providence-based non-profit that 1 The caption of Plaintiff’s Complaint references “National Grid, Inc.,” but Plaintiff’s summons was directed to National Grid USA. 2 This Court granted CAPP’s Motion to Dismiss for Lack of Personal Jurisdiction on July 20, 2016. In considering whether to dismiss the claims against CAPP for lack of personal jurisdiction, or transfer the case against CAPP to the appropriate District, the Court aptly noted that “concerns about judicial economy warrant[ed] dismissal.” See Dkt. No. 24, p. 4 (noting “‘[I]f an action or appeal is frivolous or fanciful, it is in the interest of justice to dismiss it rather than keep it on life support (with the inevitable result that the transferee court will pull the plug).’”). Notably, a search of the Justia website for federal court cases involving Plaintiff yielded a staggering 162 lawsuits initiated by Plaintiff. See Search Results for “Ronald Emrit”, Justia Website, at https://dockets.justia.com/search?query=Ronald+Satish+Emrit (last visited Sept. 20, 2016). Earlier this year, in one of these separate and unrelated suits brought by Plaintiff, see Emrit v. Arizona Supreme Court, et al., U.S. District Court for the District of Arizona, Case 2:15-cv-01718-ESW (Dkt. 9 Mar. 9, 2016), the United States District Court Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 1 of 14 2 {Client Files/140702/0360/PLD/03805803.DOCX;2} provides various services to low-to-moderate income individuals and families.3 Dkt. No. 24, p.1; Dkt. No. 22-1. Plaintiff’s pro se Complaint against National Grid and CAPP asserts various causes of action against both Defendants based on the Defendants’ alleged delay in and/or failure to provide Plaintiff with financial assistance for utility services pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and the Low Income Home Energy Assistance Program (“LIHEAP”). Compl., ¶¶ 13-21. Specifically, Plaintiff has asserted claims against the Defendants for: (1) breach of contract; (2) negligence; (3) violation of the Equal Protection Clause; (4) violation of the Due Process Clause; and (5) violation of the Privileges and Immunities Clause. Compl., ¶¶ 1-3; 13-21. Plaintiff alleges he is an indigent, disabled and unemployed resident of Las Vegas, Nevada, but that he previously lived in Providence, Rhode Island in an apartment located at 976 Douglas Avenue, 2nd Floor (the “Apartment”), that he shared with a roommate. Compl., ¶¶ 4, 13. Plaintiff moved into the Apartment in August, 2012, which apparently was already inhabited by his roommate, and he was later added as a tenant on his roommate’s “Section 8 policy.”4 for the District of Arizona found “that there [was] an adequate record to support the issuance of a vexatious litigant order against Plaintiff. See Emrit v. Nat'l Academy of Recording Arts & Sciences, No. 1:14-cv-00392-SS (W.D. Tex. Feb. 5, 2015), ECF No. 35 (discussing forty-seven meritless federal lawsuits filed by Plaintiff since March 2013 and entering a vexatious litigant order against Plaintiff); Emrit v. Soc. Sec. Admin., No. 2:14-cv-01760-GMN-PAL (D. Nev. July 29, 2015), ECF No. 36 (entering a vexatious litigant order against Plaintiff); Emrit v. Leal-Mendez, No. 2:14-cv-02281-ROS (D. Ariz. Oct. 23, 2014), ECF No. 17 (screening order dismissing Plaintiff's complaint without leave to amend); Emrit v. Access Rx, No. 2:15-cv-00936-DGC (D. Ariz. Nov. 3, 2015), ECF No. 10 (screening order dismissing Plaintiff's complaint with leave to amend and noting that "Plaintiff is on his way to becoming a vexatious litigant in the District of Arizona"; Plaintiff did not file an amended complaint)” and stated “If Plaintiff continues to file frivolous actions, the Court may issue a vexatious litigant order enjoining Plaintiff from filing any civil action in the United States District Court for the District of Arizona without first obtaining leave of the Court.” See Emrit v. Arizona Supreme Court, et al., U.S. District Court for the District of Arizona, Case 2:15-cv-01718-ESW (Dkt. 9 Mar. 9, 2016). 3 According to CAPP, these services include operation of a food pantry, GED preparation, parent leadership training and veteran services. Dkt. No. 22-1, p. 2. 4 Plaintiff appears to be referencing the “Section 8” Program administered by the United States Department of Housing and Urban Development under Section 8 of the Housing Act of 1937 (42 U.S.C. § 1437f), which authorizes the payment of rental housing assistance to private landlords on behalf of low-income households. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 2 of 14 3 {Client Files/140702/0360/PLD/03805803.DOCX;2} Compl., ¶ 13. Electric power and gas service was provided to the Apartment by National Grid, a utility company. Compl., ¶ 14. All National Grid bills were in the name of Plaintiff’s roommate. Compl., § XB (“all of the National Grid bills were officially in her [i.e., Plaintiff’s roommate’s] name.”). Plaintiff claims he frequently paid the monthly National Grid bill from his monthly Social Security Disability payment. Compl., ¶ 14. Plaintiff claims that he and his roommate5 requested financial assistance from National Grid and CAPP pursuant to the “Henry Shelton Act (Arrearage Forgiveness Program) and the Low Income Home Energy Assistance Program (LIHEAP).” Compl., ¶ 15. Plaintiff alleges that CAPP “was slow to provide the plaintiff and his roommate financial assistance in 2013 and failed to provide the plaintiff and his roommate with any financial assistance in 2014 with regards to either of the aforementioned programs.” Compl., ¶ 16.6 Plaintiff’s breach of contract claim, asserted in Count I, alleges the Defendants “committed a material breach of contract by failing to provide the Plaintiff and his roommate in 2014 with any financial assistance pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP.” Compl., ¶ 17. Plaintiff’s negligence claim, asserted in Count II, alleges the Defendants “were negligent because they breached their duty of care owed to the plaintiff and his roommate to provide them with financial assistance pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 18. Count III alleges the Defendants “violated the Equal Protection Clause by failing to provide the plaintiff and his roommate with any financial assistance (in 5 This Court has previously ordered that “[a]s a pro se litigant, Plaintiff may not represent the interest of his roommate[.]” See Dkt. No. 13. Plaintiff still impermissibly appears to be attempting to assert claims against National Grid on behalf of his unnamed roommate. 6 Paragraph 16 of Plaintiff’s Complaint appears to mistakenly refer to CAPP as “the second plaintiff,” rather than the “second defendant.” See Compl., ¶ 16 (“The second plaintiff was . . . .); Compl., ¶ 6 (referring to CAPP as “the second defendant”); Compl., ¶ 5 (referring to National Grid as “the first defendant”). Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 3 of 14 4 {Client Files/140702/0360/PLD/03805803.DOCX;2} 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP.” Compl., ¶ 19. Plaintiff states that he “and his roommate are part of a suspect classification of discrete and insular minorities who have experienced invidious discrimination within the context of American jurisdiction.” Id. Count IV alleges the Defendants “violated [Plaintiff’s] substantive and procedural due process rights by failing to provide him and his roommate with any financial assistance (in 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and the Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 20. Count V alleges the Defendants “violated the Privileges and Immunities Clause by failing to provide [Plaintiff] and his roommate with any financial assistance (in 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 21. As set forth below, all of Plaintiff’s claims must be dismissed for failure to state a claim under Rule 12(b)(6). ARGUMENT A. Rule 12(b)(6) Standard To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “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)). The court “must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiff[ ].” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). However, “courts have no duty ‘to conjure up unpleaded facts that might turn a frivolous claim . . . into a substantial one.’” Twombly, 550 U.S. at 562 (quoting O’Brien v. DiGrazia, 544 F.2d 543, 546, n.3 (1st Cir. 1976)). “The court need not accept a plaintiff’s assertion that a factual allegation satisfies an element of a claim, however, nor Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 4 of 14 5 {Client Files/140702/0360/PLD/03805803.DOCX;2} must a court infer from the assertion of a legal conclusion that factual allegations could be made that would justify drawing such a conclusion.” Cordero-Hernandez v. Hernandez-Ballesteros, 449 F.3d 240, 244 n.3 (1st Cir. 2006) (internal citations omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The Court must “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.” Schatz v. Republican State Leadership Committee, 669 F.3d 50, 55 (1st Cir. 2012). “[F]actual allegations” must be separated from “conclusory statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely a conceivable, case for relief.” Juarez v. Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir. 2013) (internal quotations omitted). This highly deferential standard of review “does not mean, however, that a court must (or should) accept every allegation made by the complainant, no matter how conclusory or generalized.” United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Dismissal for failure to state a claim is appropriate when the pleadings fail to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)) (internal quotation marks omitted). A court’s assessment of the pleadings is “context-specific” requiring “the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 5 of 14 6 {Client Files/140702/0360/PLD/03805803.DOCX;2} the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). Here, as set forth below, none of Plaintiff’s claims asserted in the Complaint meets the requisite pleading standard, and as such, Plaintiff’s Complaint must be dismissed. B. Count I: Breach of Contract Count I of Plaintiff’s Complaint alleges National Grid “committed a material breach of contract by failing to provide the plaintiff and his roommate in 2014 with any financial assistance pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP.” Compl., ¶ 17. Plaintiff’s Complaint offers no allegations identifying any contract between National Grid and Plaintiff. Nor does the Complaint contain any allegations supporting any contention that a contract of any kind existed between National Grid and Plaintiff, identifying the terms of any such contract or any obligations owed by National Grid to Plaintiff, or otherwise alleging how National Grid might have breached any contract with Plaintiff. Rather, Plaintiff’s breach of contract claim, and indeed all of his claims, are premised on the vague allegation that National Grid failed to provide him and his roommate in 2014 with financial assistance pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP. Compl., ¶ 17. Plaintiff has not alleged he was even a customer of National Grid and admits in his Complaint that “all of the National Grid bills were officially in [his roommate’s] name.” Compl., § XB. Plaintiff has also not offered any allegations supporting any notion that National Grid had a contractual or other obligation to provide him with financial assistance under the cited government programs, which are discussed briefly below. The Low Income Home Energy Assistance Program (LIHEAP), codified at 42 U.S.C. §§ 8622-8629 (1982), is a federal block grant program that provides financial assistance to low Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 6 of 14 7 {Client Files/140702/0360/PLD/03805803.DOCX;2} and fixed-income individuals for fuel and utility bills, as well as low-cost weatherization and energy-related home repairs. See LIHEAP, Website of American Gas Association, at https://www.aga.org/LIHEAP (last visited Sept. 20, 2016). The LIHEAP statute provides “regular” funding that is allotted to states according to a formula prescribed in the statute, as well as “contingency” funding that is allotted and released by the president and the secretary of Health and Human Services. Id. Every year, Congress must appropriate funds for LIHEAP and LIHEAP is administered by the states. Id. The Henry Shelton Act, a Rhode Island law that went into effect in October, 2011, established an arrearage forgiveness program for LIHEAP-eligible low-income residential households who have had their utility services shut off for non-payment or who have been scheduled for shutoff. See Consumer Information, The Henry Shelton Act, Website of State of Rhode Island Public Utilities Commission and Division of Public Utilities and Carriers, at http://www.ripuc.org/consumerinfo/The%20Henry%20Shelton%20Act_1.pdf (last visited Sept. 20, 2016). Under this program, the customer is responsible for obtaining certification from a local Community Action Program (“CAP”)7 that they are LIHEAP eligible. Id. The CAP will then confirm and notify the utility company of the customer’s eligibility for the forgiveness payment plan. Id. Customers enrolling in the payment plan under the program are required to make an initial down payment of 10% of their unpaid balance in order to avoid utility service termination for nonpayment or have their service restored. Id. The customer is then required to agree to pay 1/36 of 40% of the remaining balance over the next 36 months. Id. If the customer successfully pays the scheduled monthly payments for the three-year period, then 60% of the unpaid remaining balance is forgiven and credited from the customer’s utility account. Id. 7 Such as CAPP. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 7 of 14 8 {Client Files/140702/0360/PLD/03805803.DOCX;2} Enrollment in the program is a one-time offer and a customer’s failure to pay the prescribed monthly payments results in the household’s removal from the program. Id. Once removed from the program, the customer is subject to collection activities and possible utility service termination. Id. Plaintiff has not alleged any facts indicating the Henry Shelton Act created any contractual rights between National Grid and Plaintiff, who was not even an alleged customer of National Grid. Further, Plaintiff has not alleged that he obtained the requisite certification from a CAP that he was LIHEAP-eligible or that he was otherwise eligible for any possible arrearage forgiveness under the Henry Shelton Act, or that he complied with all conditions precedent under that statute to obtain arrearage forgiveness. Indeed, given Plaintiff’s claims that CAPP failed to provide Plaintiff with financial assistance under the Henry Shelton Act and/or LIHEAP, CAPP presumably never certified Plaintiff was eligible under these statutes, and thus National Grid certainly would never have had any obligation, contractual or otherwise, to provide any financial assistance or arrearage forgiveness to Plaintiff. Plaintiff has not sufficiently articulated the existence of any contract with or any claim against National Grid for breach of contract based on any customer relationship, pursuant to the state and federal programs referenced, or otherwise. In the absence of allegations setting forth even the existence of a contract, Plaintiff fails to state a breach of contract claim against National Grid. See Doyle v. Hasbro, Inc., 103 F.3d 186, 194-95 (1st Cir. 1996); Persson v. Scotia Prince Cruises, Ltd., 330 F.3d 28, 34 (1st Cir. 2003) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1235, at 268-70 (2d ed. 2002)) (breach of contract claim requires “existence of a valid and binding contract.”). As such, Plaintiff’s breach of contract claim must be dismissed. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 8 of 14 9 {Client Files/140702/0360/PLD/03805803.DOCX;2} C. Count II: Negligence Plaintiff’s negligence claim, asserted in Count II, alleges the Defendants “were negligent because they breached their duty of care owed to the plaintiff and his roommate to provide them with financial assistance pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 18. Before a defendant can be held liable for negligence, there must be a breach of some duty owed to the plaintiff. Wilson Auto Enterprises, Inc. v. Mobil Oil Corp., 778 F. Supp. 101, 104 (D.R.I. 1991) (citing Paquin v. Tillinghast, 517 A.2d 246, 248 (R.I. 1986) and Ryan v. State Dep't of Transp., 420 A.2d 841, 843 (R.I. 1980)). Plaintiff’s negligence claim fails for the same basic reason that Plaintiff’s breach of contact claim fails -- Plaintiff has failed to allege or show how National Grid had any obligation or owed any legal duty to provide him with financial assistance under the Henry Shelton Act or LIHEAP.8 Again, Plaintiff has not alleged he was even a customer of National Grid and has admitted the account with National Grid was in his roommate’s name. He has also not alleged or shown that he was entitled to any benefits or arrearage forgiveness under the LIHEAP or the Henry Shelton Act, that he was certified by any CAP as being eligible for these programs, or that he qualified and/or complied with all conditions precedent under the Henry Shelton Act to receive any benefits of that statute. Plaintiff’s bare and conclusory pleaded Complaint fails to set forth factual allegations, either direct or inferential, that would support the existence of any duty owed by National Grid to Plaintiff or any violation of such a duty. See Berner, 129 F.3d at 25; Gooley, 851 F.2d at 515. As such, his negligence claim must also be dismissed. 8 In the Court’s Opinion and Order granting CAPP’s Motion to Dismiss, the Court noted the “allegations in the Complaint tend towards the conclusory and fail generally to show how CAPP had a legal duty to the plaintiff or how the plaintiff was discriminated against in any constitutional sense.” Dkt. No. 24, p.4. This assessment equally applies to the allegations as against National Grid. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 9 of 14 10 {Client Files/140702/0360/PLD/03805803.DOCX;2} D. Counts III-V: Alleged Constitutional Violations Counts III to V of Plaintiff’s Complaint must also be dismissed. These Counts assert constitutional violations against National Grid alleging National Grid violated Plaintiff’s federal constitutional rights under the Equal Protection, Due Process and Privileges and Immunities Clauses by failing to provide him and his roommate with financial assistance in 2014 pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP. Compl., ¶¶ 19-21. Specifically, Count III alleges the Defendants “violated the Equal Protection Clause by failing to provide the plaintiff and his roommate with any financial assistance (in 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or LIHEAP.” Compl., ¶ 19. Plaintiff states that he “and his roommate are part of a suspect classification of discrete and insular minorities who have experienced invidious discrimination within the context of American jurisdiction.” Id. Count IV alleges the Defendants “violated [Plaintiff’s] substantive and procedural due process rights by failing to provide him and his roommate with any financial assistance (in 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and the Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 20. Finally, Count V alleges the Defendants “violated the Privileges and Immunities Clause by failing to provide [Plaintiff] and his roommate with any financial assistance (in 2014) pursuant to the Henry Shelton Act (Arrearage Forgiveness Program) and/or Low Income Energy Assistance Program (LIHEAP).” Compl., ¶ 21. All of these claims fail at the outset for the same reason -- Plaintiff fails to identify any law under which these claims are asserted (i.e., 42 U.S.C. § 1983), and National Grid is a private, rather than state actor, and there is no allegation of or basis to allege any state/governmental action that might implicate a potential constitutional violation and thus claim under 42 U.S.C. § 1983. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 10 of 14 11 {Client Files/140702/0360/PLD/03805803.DOCX;2} The United States Constitution itself does not create a federal cause of action. Azul- Pacifico Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir. 1992) (“Azul II”) (stating that “Plaintiff has no cause of action directly under the United States Constitution”). Moreover, “[t]he Bill of Rights of the United States Constitution limits the powers of the federal government and not private persons. Similarly, the Fourteenth Amendment limits the powers of state government and not the acts of private persons. Given these mentioned limitations, neither the Bill of Rights nor the Fourteenth Amendment provide an actionable basis to redress violations done by private persons.” Lawson v. Liburdi, 114 F. Supp. 2d 31, 36-37 (D.R.I. 2000); see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974) (discussing “essential dichotomy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, ‘however discriminatory or wrongful,’ against which the Fourteenth Amendment offers no shield.”) (internal citation omitted). Thus, for a plaintiff to generally maintain an action alleging violation of federal constitutional rights, there must be government/state action involved and the claim must be brought under some viable statutory mechanism, such as 42 U.S.C. § 1983, which is the typical vehicle for a claim alleging violation of federal constitutional rights. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“a litigant complaining of a violation of a constitutional right does not have a direct cause of action under the United States Constitution but must utilize 42 U.S.C. § 1983”) (citing Azul II, 973 F.2d at 705); Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244, 247 (1st Cir. 2012) (“It is a condition of the constitutional claims that the [defendant’s] actions qualify as governmental action.”); Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005). Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 11 of 14 12 {Client Files/140702/0360/PLD/03805803.DOCX;2} To sustain a claim for violation of federal constitutional rights under § 1983, a plaintiff must allege-and eventually prove-that the deprivation of his or her rights occurred at the hands of a person “acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “It is ‘[o]nly in rare circumstances’ that private parties can be viewed as state actors” and, thus, liable for violations of constitutional rights. Estades-Negroni, 412 F.3d at 4. The First Circuit has identified several tests for determining “whether a private party fairly can be characterized as a state actor.” Id. at 5. These are the public function test, the “entwinement” test, the state compulsion test, and the nexus/joint action test. Id.; Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26 (1st. Cir. 2002). The burden to show that a private party’s actions constitute state action rests with the plaintiff. Mead v. Independence Ass'n, 684 F.3d 226, 231 (1st Cir. 2012). Here, Plaintiff’s Complaint does not identify any statutory vehicle under which he is asserting his constitutional claims and thus these Counts, on their face, fail to pass muster under Rule 12(b)(6). Furthermore, to the extent Plaintiff is seeking relief under 42 U.S.C. § 1983, Plaintiff’s claims similarly fail at the outset given that National Grid, a private utility company, is not a state actor and Plaintiff has not alleged any state or governmental action that might give rise to a constitutional violation under § 1983. While it is true that under limited circumstances, conduct by nominally private actors may be characterized as governmental action for constitutional purposes, see Gonzalez- Maldonado, 693 F.3d at 247-248, Plaintiff offers no allegations implicating any action that might be deemed governmental action, and Plaintiff cannot demonstrate the existence of any such action in this case. See Jackson, 419 U.S. at 353 (rejecting “contention that the furnishing of utility services is either a state function or municipal duty.”); Gonzalez-Maldonado, 693 F.3d at 248 (noting “running a utility company . . . do[es] not qualify [as government action]”); Mead, Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 12 of 14 13 {Client Files/140702/0360/PLD/03805803.DOCX;2} 684 F.3d at 231 (it is Plaintiff’s “burden to show that a private party's actions constitute state action”). Here, again, Plaintiff has not alleged any state action and cannot demonstrate any state action that might give rise to his proffered constitutional claims. Further, even putting aside the absence of any state action, Plaintiff’s threadbare and conclusory allegations do not sufficiently articulate any plausible claim for violation of Plaintiff’s constitutional rights or of any unlawful discrimination. Plaintiff merely alleges, in conclusory fashion, that the Defendants violated his Equal Protection Clause rights by failing to provide him with financial assistance and that he is a member of a minority group. Again, Plaintiff has not alleged or demonstrated that he was entitled to any financial assistance from the Defendants and does not allege with any particular facts or demonstrate that any failure to provide him with such assistance was based on discriminatory animus. A plaintiff “may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus.” Coyne v. Somerville, 972 F.2d 440, 444 (1st Cir. 1992); see Morales-Cruz v. University of Puerto Rico, 676 F.3d 220, 225 (1st Cir. 2012) (holding plaintiff’s allegations that she was unfairly terminated because she was a woman, unaccompanied by factual predicate, was not enough to make her discrimination claim plausible). Plaintiff’s constitutional claims and any claim of discrimination are unfounded and unsubstantiated. For these reasons and those set forth above, Counts III, IV and V of Plaintiff’s Complaint must also be dismissed.9 9 Plaintiff’s Complaint does not allege any violation of the Rhode Island Civil Rights Act of 1990 or contain any allegations that would be sufficient to state a claim under that Act. Additionally, while Plaintiff’s Complaint does not contain any counts alleging violation of the Fair Credit Reporting Act or any specific allegations of any violation of the Act, his “Prayer for Relief” includes a request for an injunction “mandating that [National Grid] have its collection agency stop contacting and harassing the plaintiff through the mail or over the phone about an unpaid balance” and “mandating that [National Grid] remove its outstanding bill or unpaid balance from plaintiff’s credit report . . . [which] is subject to the Fair Credit Reporting Act (FCRA) which is monitored by the Federal Trade Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 13 of 14 14 {Client Files/140702/0360/PLD/03805803.DOCX;2} CONCLUSION For the foregoing reasons, Defendant National Grid USA respectfully requests that this Court dismiss Plaintiff Ronald Satish Emrit’s Complaint. DEFENDANT NATIONAL GRID USA, By Its Attorneys, /s/ David Viens David Viens (BBO #664281) BOWDITCH & DEWEY, LLP 311 Main Street P.O. Box 15156 Worcester, MA 01615-0156 Telephone: 508-926-3403 Facsimile: 508-929-3104 E-mail: dviens@bowditch.com CERTIFICATE OF SERVICE I certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on September 22, 2016. /s/ David Viens David Viens Commission (FTC).” See Compl., §§ X(E)-(F). Plaintiff has similarly failed to properly articulate any specific alleged violation of the FCRA or any specific allegations implicating a potential actionable claim thereunder. Case 1:14-cv-14769-GAO Document 30-1 Filed 09/22/16 Page 14 of 14