United States District Court, E.D. New York
April 15, 2005.
HAROLD NANCE, Plaintiff,
LIEUT. J.W. HAZELL, NO. 11; JEFFERSON, NO. 24, HANNIKE, NO. 31; BRITT, NO. 30; DR. REZNIKE; and LONG ISLAND COLLEGE HOSPITAL, Defendants.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Plaintiff, Harold Nance ("Nance"), proceeding pro se and in
forma pauperis, brings this action pursuant to 28 U.S.C. § 1983;
his amended complaint alleges that, while seeking treatment and
medication at defendant Long Island College Hospital ("LICH"), he
was "grabbed forcefully" by "Hospital Security Police" and thrown
out. Am. Compl. at 3. Nance has sued LICH, an LICH doctor and
four LICH security officers; service has been perfected as to all
defendants except "Jefferson, No. 24" and "Britt, No. 30."
The served defendants move for summary judgment on the grounds
that, because they are not state actors, they are not liable
under § 1983; the Court agrees and grants the motion. For the same reason, the Court dismisses the
claims against the unserved defendants.
A. Summary Judgment
Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. See Fed.R.Civ.P. 56(c); Powell v. Nat'l
Bd. of Med. Examiners, 364 F.3d 79, 84 (2d Cir. 2004). In making
this determination, a court must view the facts in the light most
favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the
movant. See Baisch v. Gallina, 346 F.3d 366, 372 (2d Cir.
Here, the affidavits submitted in support of the motion for
summary judgment establish (1) that LICH is a private hospital,
and (2) that its security officers are not police officers or
otherwise affiliated with any governmental law-enforcement
agency. The material submitted by Nance in opposition to the
motion in no way contradicts those facts. There is, therefore, no
genuine issue that the defendants are private parties.
A claim under § 1983, however, requires a plaintiff to show
that the defendant was acting under color of state law (also
known as "state action"). See Tancredi v. Metro. Life Ins. Co.,
316 F.3d 308, 312 (2d Cir. 2003); United States v. Int'l
Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)
("Because the United States Constitution regulates only the
Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish
that the challenged conduct constitutes `state action.'"). With
certain exceptions not relevant here, the conduct of a private
entity or individual is not "state action." See Tancredi,
316 F.3d at 312-14 (citing Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass'n, 531 U.S. 288 (2001)).
B. Dismissal for Failure to State a Claim
Because Nance is proceeding in forma pauperis, the Court must
dismiss the case sua sponte if it determines that the amended
complaint fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal on those
grounds is usually accompanied by leave to amend the complaint;
however, leave to amend need not be granted when it would be
futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
As previously explained, a § 1983 claim requires a plaintiff to
show state action. Nance's amended complaint makes no such
allegation with respect to either the served defendants or the
unserved defendants; therefore, the amended complaint fails to
state a valid § 1983 claim against any defendant. Because it is
undisputed that the defendants are not, in fact, state actors,
leave to amend the complaint would be futile. Accord Washington
v. Lenihan, 1996 WL 345950, at *3 (S.D.N.Y. 1996) ("[E]ven if
Plaintiff was granted leave to refile his claim against [an
unserved defendant], it would be dismissed on the grounds [for
dismissing the defendants moving for summary judgment].").
In sum, it is undisputed that the defendants are not state
actors. As a result, the served defendants are entitled to
summary judgment on Nance's § 1983 claims against them. For the
same reason, Nance cannot state valid § 1983 claims against the
unserved defendants. The case is, therefore, dismissed as to all
defendants.*fn2 Pursuant to 28 U.S.C. § 1915(a)(3), the
Court certifies that any appeal from this order would not be
taken in good faith; therefore, in forma pauperis status is
denied for purposes of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).