United States District Court, Southern District of New York
January 4, 1990
RICHARD S. STUDIFIN, PLAINTIFF,
NEW YORK CITY POLICE DEPARTMENT &MDASH; LICENSE DIVISION &MDASH; FIREARMS CONTROL SECTION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: William C. Conner, District Judge:
OPINION AND ORDER
This pro se civil rights action is presently before the Court
on the motion of defendant YMCA of Greater New York — Prospect
Park Branch ("YMCA") to dismiss the amended complaint as
against it for failure to state a claim upon which relief may
be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the
following reasons, YMCA's motion is granted.
Plaintiff Richard S. Studifin brings this action pursuant to
42 U.S.C. § 1981, 1982, 1983 and 1985(3) to redress the
deprivation of his civil rights by numerous defendants. In his
amended complaint, pro se plaintiff alleges that he and his
YMCA room were subject to an illegal search and seizure. He
also charges defendants with false arrest, threat with a
firearm, malicious prosecution, denial of a jury trial and
denial of appellate review.
Plaintiff implicates YMCA three times in his amended
2. That in or around March 1985, Sergeant Heekin,
shield 2865 of the New York City Police Department
Firearms Control Section, License Division —
together with Gussie Sanzillo, (Executive Director
of YMCA) stood in the lobby waiting for me to leave
the premises, thereafter, broke and entered my room
attempting to secure my firearms.
11. That the YMCA commenced a Hold-Over proceeding
in the landlord-tenant Part of the Civil Court
located at 141 Livingston Street, Brooklyn, New
York 11201., for "NO REASON".
12. That the YMCA brought in an Executive from the
main branch of the herein-mentioned located in the
borough of Manhattan, (a black man) so the case
would not have racial overtones, moreover, their
activities were performed under color of State law
or State Authority they conspired and involved
itself in the Constitutional deprivation of my
Pursuant to New York law, YMCA brought a hold-over proceeding
in the Landlord/Tenant Part of Kings County Civil Court to
evict plaintiff and to collect rent arrearages and fair value
for the period after which the lease had expired. YMCA also
believed plaintiff unlawfully possessed firearms in his YMCA
room. Although plaintiff contested the proceeding, a final
judgment of possession was rendered in favor of YMCA.
When considering a motion to dismiss, a court must accept
plaintiff's allegations as true. See Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The
test is whether, viewed in the light most favorable to the
plaintiff, and with every doubt resolved in his favor, the
complaint states any valid ground for relief. See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80
(1957); Clay v. Martin, 509 F.2d 109 (2d Cir. 1975). A
complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that plaintiff can prove no
set of facts in support of a claim that would entitle him to
relief. See Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984),
cert. denied, 470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144
(1985). Additionally, in a case brought by a pro se plaintiff,
the court must construe the complaint broadly, holding it to
less stringent standards than formal pleadings drafted by
counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,
595-96, 30 L.Ed.2d 652 (1972).
YMCA's motion to dismiss challenges the sufficiency of
plaintiff's claims under each of the civil rights statutes.
42 U.S.C. § 1983*fn1
A claim under section 1983 must embody at least two elements.
must show that he has been deprived of a right secured by the
Constitution and the laws of the United States. Second, he must
show that defendant deprived him of this right "under color of
any statute, ordinance, regulation, custom, or usage, of any
State or Territory." See Gomez v. Toledo, 446 U.S. 635, 640,
100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).
The color of state law requirement will not be met by claims
against a private defendant, such as the YMCA, absent
allegations that it conspired with state officials.*fn2
See Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186,
66 L.Ed.2d 185 (1980); Adickes v. Kress, 398 U.S. 144, 150, 90
S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The pleadings must
specifically present supporting operative facts tending to show
agreement and concerted action between the private party and
the state actors. See Doe v. Smith, 704 F. Supp. 1177, 1188
(S.D.N.Y. 1988). "Complaints containing only `conclusory',
`vague', or `general allegations' of a conspiracy to deprive a
person of constitutional rights will be dismissed." Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); see McGaney v.
Scully, 664 F. Supp. 151, 152 (S.D.N.Y. 1987). Even a pro se
plaintiff must allege some factual basis to substantiate his
conclusion that defendants conspired together to deprive him of
his constitutionally protected interests. See McGaney v.
Scully, 664 F. Supp. at 152.
Plaintiff's amended complaint alleges violations of his
rights under the 4th, 5th, 6th, 13th, and 14th amendments.
Although it states that YMCA "conspired and involved itself in
the Constitutional deprivations of my rights," the complaint
lacks any specific factual representations that show or suggest
a conspiracy to deprive plaintiff of his constitutional rights.
The only factual representations implicating YMCA whatsoever
are 1) that Sergeant Heekin of the Firearms Control Section of
the New York City Police, accompanied by YMCA's executive
director, broke and entered plaintiff's YMCA room, 2) that YMCA
brought an eviction proceeding against plaintiff without basis
and 3) that YMCA brought a black man to the proceeding to avoid
the appearance of racial motivation. Plaintiff's one-sentence
allegation of conspiracy, without supporting facts or
specification of time, place, persons, and dates pertaining to
the alleged conspiracy, fails to charge a conspiracy with
sufficient particularity to make out a section 1983 claim
against this private party.*fn3 Accordingly, YMCA's motion to
dismiss plaintiff's section 1983 claim is granted.
42 U.S.C. § 1981,*fn4 1982,*fn5 and 1985(3)*fn6
Unlike section 1983, sections 1981, 1982 and 1985(3) permit
actions alleging discriminatory conduct against wholly private
individuals and organizations. See Runyon v. McCrary,
427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (§ 1981); Jones v.
Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d
1189 (1968) (§ 1982); Griffin v. Breckenridge, 403 U.S. 88,
96-102, 91 S.Ct. 1790, 1795-98, 29 L.Ed.2d 338 (1971) (§
1985(3)). To state a claim under these sections, plaintiff must
show that a deprivation of his rights occurred as a direct
result of his race.*fn7
In addition to pleading racial animus, a plaintiff suing
under these statutes must allege intentional discrimination.
See General Bldg. Contractors Ass'n v. Pennsylvania,
458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) (§ 1981
prohibits only intentional discrimination); Phillips v. Hunter
Trails Community Ass'n, 685 F.2d 184, 187-89 (7th Cir. 1982)
(intent requirement of § 1981 extends to § 1982 claims);
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798,
29 L.Ed.2d 338 (1971) (§ 1985(3) requires intent to deprive of
Although plaintiff states that he is black, close scrutiny of
his amended complaint reveals that plaintiff fails to allege or
describe any intentional or purposeful discriminatory
wrongdoing by YMCA or any of its agents or employees. The
amended complaint is devoid of any substantive allegation that
YMCA's alleged actions were motivated by consideration of
plaintiff's race. In fact, that YMCA's executive director
accompanied the police sergeant to its resident's room, does
not support an inference of racial motivation. The director's
presence was more likely intended to ensure minimal
interference or damage to the property of both plaintiff and
YMCA. That YMCA brought an eviction proceeding to collect rent
arrearages and fair value from a hold-over tenant is far from
racially based; it is permitted by statute. That YMCA brought
a black man to the eviction proceeding is inconsequential.
Accordingly, plaintiff has not stated a claim for relief under
sections 1981, 1982 and 1985(3).*fn8
For the reasons discussed above, YMCA's motion to dismiss the
amended complaint as against it is granted.