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Byng v. Delta Recovery Services, LLC

United States District Court, Second Circuit

July 1, 2013

KEVIN V. BYNG, Plaintiff,
v.
DELTA RECOVERY SERVICES, LLC, et al., Defendants.

KEVIN V. BING, Plaintiff, pro se.

ORDER and REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

The Clerk has sent to the court a civil rights complaint, together with an application to proceed in forma pauperis ("IFP"), filed by pro se plaintiff, Kevin V. Byng. (Dkt. Nos. 1, 2).

I. IFP Application

A review of plaintiff's IFP application shows that he declares he is unable to pay the filing fee. (Dkt. No. 2). This court agrees, and finds that plaintiff is financially eligible for IFP status.

In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) 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)(i)-(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim 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)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint

Plaintiff alleges that he is "physically disabled, " has mental health problems, and a history of alcohol and cocaine abuse. (Compl. ¶¶ 4-5) (Dkt. No. 1). Plaintiff alleges that on January 4, 2011, while he was on parole, he successfully completed a six-month, intensive, residential, inpatient, substance abuse program at Insight House in Utica, New York. (Compl. ¶ 5). Plaintiff states that he was "doing well, " and he "agreed" to continue his treatment at defendant Delta Recovery Services, LLC ("Delta House"). He entered Delta House the same day. (Compl. ¶ 6).

Plaintiff alleges that Delta House is a New York State Office of Alcoholism and Substance Abuse Services ("OASAS") - "licensed treatment facility, " having obtained its license in 2005. (Compl. ¶ 7). Plaintiff states that Delta House was certified as a Congregate Care Level 2 ("CCL2") Residential Treatment Program facility, which means that it is required to provide residents with daily housing, meals, counseling, and medical/mental health services "like Insight House." ( Id. ) The complaint contains several paragraphs discussing how Delta House allegedly overcharges for rent, based upon its license and upon the services it renders to residents.[1] (Compl. ¶¶ 8-14).

The crux of the complaint is that on January 13, 2011, defendant Wood (the alleged owner of Delta House) came into plaintiff's room to tell plaintiff that he would give plaintiff a lamp. (Compl. ¶ 15). Plaintiff states that he "went and took a shower" and came back into the room, naked. ( Id. ) Defendant Wood apparently came back into plaintiff's room with the lamp, and when he saw that the plaintiff was naked, closed the door, unzipped his pants, pulled out his penis, and told plaintiff to "suck it.'" (Compl. ¶ 16). When plaintiff refused, defendant Wood threatened to call "parole" and report that plaintiff had violated his parole by drinking alcohol so that he would be sent back to prison. (Compl. ¶ 16). Because of this threat and the fear of returning to prison, plaintiff "reluctantly... masturbated him" with his right hand. (Compl. ¶ 17). Defendant Wood allegedly told plaintiff that if he told anyone about the incident, defendant Wood would call the police and parole, claim that plaintiff was drinking, and that plaintiff "assaulted [Wood]." Wood told plaintiff that he would go back to prison where he belonged. ( Id. )

Plaintiff claims that he was so "ashamed, embarrassed, and worried, " that he got dressed and immediately left Delta House, forgetting his keys. (Compl. ¶ 18). Plaintiff states that he went to the bank, withdrew money, and unfortunately relapsed, drinking alcohol and using cocaine. ( Id. ) Plaintiff claims that because he forgot his keys to Delta House, he could not get back in, and no one would answer the door, so that he was "homeless, freezing in the cold, [and] without his mental health medications." (Compl. ¶ 19). Plaintiff states that he spent most of his money and kept using cocaine and drinking for the next few days. ( Id. )

On January 17, 2011 plaintiff walked over to Delta House, and Mr. Wood's assistant let him in, but told plaintiff that he was "kicked out per Mr. Wood." (Compl. ¶ 20). Plaintiff states that the assistant then called Mr. Wood on the telephone. (Compl. ¶ 20). Plaintiff spoke to Wood, asked him for the balance of plaintiff's unused rent, and asked Wood where plaintiff "was supposed to go." ( Id. ) Plaintiff claims that Wood told him that he could not have his money, if he caused any trouble, Wood would call the police, and he did not care where plaintiff went. ( Id. ) Plaintiff states that Delta House never called "parole" to tell them that plaintiff had been evicted, nor was plaintiff told that "there was a Utica Rescue Mission Emergency Shelter... as required." ( Id. )

Plaintiff states that he took his clothes, but claims that Mr. Wood took his keys, including the key to his post office box, and his mental health medications. (Compl. ¶ 21). Plaintiff states that he was homeless, afraid, hungry, anxiety ridden, confused, and depressed. He spent the last of his money, continuing to drink and use cocaine for days. He had no medication and "virtually no sleep." As a result he "regrettably committed a ...


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