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Clarence v. Montgomery Transitional Services

November 17, 2011

CLARENCE DELANEY, JR., PLAINTIFF,
v.
MONTGOMERY TRANSITIONAL SERVICES, INC.; KIMMBERLI FLORY; JANE DOE; NEW YORK STATE OFFICE OF MENTAL HEALTH; JANINE DYKEMAN, EXECUTIVE DIRECTOR OF MONTGOMERY TRANSITIONAL SERVICES, INC.; LORI LAVENIA, APARTMENT COUNSELOR; SUE HERBA, ENTITLEMENT SPECIALIST, DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

REPORT-RECOMMENDATION and ORDER

The Clerk has sent to the Court for review an Amended Complaint filed as a right by pro se Plaintiff Clarence Delaney, Jr. Dkt. No. 11, Am. Compl. Delaney has also filed a Motion to Proceed In Forma Pauperis ("IFP"). Dkt. No. 2.

I. DISCUSSION

A. Motion for Leave to Proceed In Forma Pauperis

Turning first to Delaney's Motion to proceed IFP, this Court has reviewed the application and finds that Plaintiff may properly proceed with this matter IFP.

B. Allegations in Plaintiff's Amended Complaint

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, it is the responsibility of the court to determine that a plaintiff may

properly maintain his complaint before permitting him to proceed further with his action.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which "establishes a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) & 42 U.S.C. § 1983)); see also Myers v. Wollowitz, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is

the vehicle by which individuals may seek redress for alleged violations of their constitutional rights").

By his Amended Complaint, Plaintiff chiefly claims that Defendant Kimmberli Flory, an employee or director of the "apartment program" of Montgomery Transitional Services, defamed him when she made "false statements, verbal and written, . . . to [Plaintiff's] Parole Officer Trisha Rice." See Am. Compl. He also alleges, to a lesser extent, "negligen[t] misrepresentation," negligent training and supervision, a "breach of trust [and] duty," racial discrimination, and that the Defendants lost or stole his property. Id.

Plaintiff's action cannot be pursued under § 1983. Delaney fails to identify any specific or cognizable constitutional or federal right that was allegedly violated. Instead, his allegations of defamation, negligence, and lost property are claims that are only actionable under state law.

While Plaintiff accuses the Defendants of discriminating against him on the basis of his race, which arguably may be an attempt to assert an equal protection claim, we note that in order to state an equal protection claim, the claimant must show that a government actor intentionally discriminated against him or her on the basis of race, national origin, or gender. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). Delaney's complaints that employees and consumers of Montgomery Transitional Services, Inc., discriminated against him by mocking him, verbally abusing him, and failing to act or remedy situations when other patients harassed Plaintiff, purportedly because of his African-American heritage, could support such an action, however, he fails to allege that any of the Defendants are state actors. It is well-settled that parties may not be held liable under § 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994). State action is an essential element of any § 1983 claim, see Gentile v. Republic Tobacco Co., 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994)), and Plaintiff does not claim that any Defendant, save the New York State Office of Mental Health, acted under color of state law.*fn1 Plaintiff makes no claim, and this Court finds none, that Montgomery Transitional Services, Inc., or any of the other Defendants operated in a symbiotic relationship or sufficiently close nexus with the State, such that their private action should be deemed state action. See Atkinson v. B.C.C. Associates, Inc., 829 F. Supp. 637, 644 (S.D.N.Y. 1993) (noting that state action can be found when a "state has so far insinuated itself into a position of interdependence [with the private actor] that it must be recognized as a joint participant in the challenged activity") (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)); Chan v. City of New York, 1 F.3d 96, 106 (2d Cir. 1993) (describing how actions by a private party are deemed state action if there is a sufficiently close nexus between the challenged action and the state such that the private parties may be treated as that of the state itself).

Furthermore, Plaintiff, who only seeks monetary relief, is barred from filing such suit against the New York State Office of Mental Health, because "[a]gencies of the state . . . are entitled to assert the state's Eleventh Amendment immunity where, for practical purposes, the agency is the alter ego of the state and the state is the real party in interest." Santiago v. New York State Dep't of Corr. Serv., 945 F.2d 25, 28 n.1 (2d Cir. 1991) (citations omitted); see also Limwongse v. New York State Office of Mental Health, 249 F. App'x 862, 862-63 (2d Cir. 2007) (holding that the Eleventh Amendment applies to suit against the New York ...


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