United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge
Ronnie Joe Parker ("Plaintiff) brings this action
alleging violations of his constitutional rights. (Dkt. 1).
Plaintiff filed an amended complaint on January 10, 2017,
(Dkt. 6), and a second amended complaint on February 14,
2017.(Dkt. 8). The Court is required to screen
Plaintiffs second amended complaint due to Plaintiffs in
forma pauperis status. See 28 U.S.C. §
1915(e)(2). Also before the Court is Plaintiffs motion to
appoint counsel. (Dkt. 9).
reasons stated below, Plaintiffs defamation and right to
privacy claims must be dismissed. The remainder of Plaintiff
s second amended complaint may proceed to service.
Additionally, Plaintiffs motion to appoint counsel is denied
was indicted on April 10, 2014, for threatening the life of
the President of the United States, in violation of 18 U.S.C.
§ 871. United States v. Parker, 6:14-CR-06045,
Dkt. 11, at n (W.D.N.Y. Apr. 10, 2014).
Plaintiff was alleged to have "told a special agent of
the United States Secret Service that he was going to
'find him (the President) and kill him. . . ."
Id. Plaintiff was released on bail, but shortly
thereafter he violated the conditions of his pretrial
release, his release was revoked, and he was detained until
the conclusion of the trial. See Parker,
6:14-CR-06045, Dkt. 36 (W.D.N.Y. Dec. 15, 2014). A jury trial
commenced on September 8, 2015, and Plaintiff was acquitted
when the jury returned its verdict on September 10, 2015.
See Parker, 6:14-CR-06045, Dkt. 78 (W.D.N.Y. Sept.
filed this action on July 8, 2016, alleging violations of his
constitutional rights relating to his arrest, incarceration,
and prosecution. (Dkt. 1).
Plaintiffs Second Amended Complaint
raises nine claims in his second amended complaint: (1) false
arrest; (2) violation of his First Amendment rights; (3)
malicious prosecution; (4) false imprisonment; (5) a general
tort claim; (6) a "loss of liberty" claim; (7)
negligence; (8) defamation; and (9) a violation of Plaintiff
s "Fourth Amendment Right to Privacy." (Dkt. 8).
Standard of Review
Court has reviewed the complaint with respect to the §
1915(e)(2) criteria. Under § 1915(e)(2), the Court must
conduct an initial screening of Plaintiff s complaint.
See 28 U.S.C. § 1915(e)(2). The Court must
dismiss the complaint if it is "frivolous or malicious;
fails to state a claim upon which relief may be granted; or
seeks monetary relief from a defendant who is immune from
such relief." Id. "An action is
'frivolous' for § 1915(e) purposes if it has no
arguable basis in law or fact." Montero v.
Travis, 171 F.3d 757, 759 (2d Cir. 1999).
evaluating the complaint, a court must accept as true all of
the plaintiffs factual allegations, and must draw all
inferences in the plaintiffs favor. See, e.g., Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003). Although
"a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil
rights violations, " McEachin v. McGuinnis, 357
F.3d 197, 200 (2d Cir. 2004), evenpro se pleadings
must meet the notice requirements of Rule 8 of the Federal
Rules of Civil Procedure, Wynder v. McMahon, 360
F.3d 73, 79 n.ll (2d Cir. 2004) ("[T]he basic
requirements of Rule 8 apply to self-represented and
counseled plaintiffs alike.").
district court should look with a far more forgiving eye in
examining whether a complaint rests on a meritless legal
theory for purposes of section [§ 1915(e)] than it does
in testing the complaint against a Rule 12(b)(6)
motion." Nance v. Kelly, 912 F.2d 605, 606 (2d
Cir. 1990). In determining whether a complaint survives a
Rule 8 notice inquiry, the plaintiff need "only give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombfy, 550 U.S. 544, 555 (2007)). "So
long as the [in forma pauperis] plaintiff raises a
cognizable claim, dismissal on the basis of factual
deficiencies in the complaint must wait until the defendant
attacks the lack of such details on a Rule 12(b)(6)
motion." Nance, 912 F.2d at 607.
Claims Against Blackerby are Cognizable under
asserts that Defendant Joel D. Blackerby
("Blackerby"), a United States Secret Service
agent, violated Plaintiffs constitutional rights in various
ways. (Dkt. 8). In Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the
Supreme Court found a private right of action for monetary
damages for the violation of one's constitutional rights
by a federal agent acting under color of his authority.
Bivens, 403 U.S. at 389; see, e.g., Arar v.
Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009). "The
purpose of the Bivens remedy 'is to deter
individual federal officers from committing constitutional
violations.'" Arar, 585 F.3d at 571
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
70 (2001)). To the extent that Plaintiff states a claim for
relief against Blackerby, such claims are cognizable under
Plaintiffs Claims Against Landy, Dean, and Clifton
Springs May be Cognizable under 42 U.S.C. §
also alleges that Defendants Douglas Landy
("Landy"), Kim Dean ("Dean"), and Clifton
Springs Hospital ("Clifton Springs") violated
Plaintiffs constitutional rights. (Dkt. 8). Plaintiff asserts
that Landy called law enforcement to interview Plaintiff
while Plaintiff was under the influence of medication, and
that both Landy and Dean attended Plaintiffs interrogation by
Blackerby without saying anything. (Id. at 4-10).
Plaintiff also alleges that Clifton Springs is liable because
it employed Landy and Dean, and allowed them to "give
opinions [about a] patient without sufficient basis."
(Id. at 9). Plaintiff prays for monetary damages
from each of these three Defendants. (Id. at 12).
Court assumes Plaintiff brings his constitutional
claims against Landy, Dean, and Clifton Springs
under 42 U.S.C. § 1983. Title 42 of the United States
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress. . . .
42 U.S.C. § 1983. To establish a claim under §
1983, a plaintiff must demonstrate that the challenged
conduct was "committed by a person acting under color of
state law, " and "deprived [the plaintiff] of
rights, privileges or immunities secured by the Constitution
or laws of the United States." Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994). "[T]he
core purpose of § 1983 is to provide compensatory relief
to those deprived of their federal rights by state
actors." Hardy v. N.Y.C. Health & Hosp.
Corp., 164 F.3d 789, 795 (2d Cir. 1999) (internal
citations omitted). "The traditional definition of
acting under color of state law requires that the defendant
in a § 1983 action have exercised power possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law."
Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997).
hospital which is owned and administered by a private
corporation can be a "state actor" for purposes of
§ 1983. Kia P. v. Mclntyre, 235 F.3d 749, 756
(2d Cir. 2000). "[C]onduct that is formally
'private' may become so entwined with governmental
policies or so impregnated with a governmental character as
to become subject to the constitutional limitations placed
upon state action." Perez v. Sugarman, 499 F.2d
761, 764 (2d Cir. 1974) (quoting Evans v. Newton,
382 U.S. 296, 299 (1966)). A private hospital is a state
actor when "(1) the State compelled the conduct [the
'compulsion test'], (2) there is a sufficiently close
nexus between the State and the private conduct [the
'close nexus test' or 'joint action test'],
or (3) the private conduct consisted of activity that has
traditionally been the exclusive prerogative of the State
[the 'public function test']." McGugan v.
Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014)
(quoting Hogan v. A.O. Fox Mem 7Hosp., 346
F.App'x 627, 629 (2d Cir. 2009)) (alterations in
complaint leaves open questions as to whether Landy, Dean,
and Clifton Springs are state actors for purposes of §
1983. It is unclear whether Clifton Springs is a private
entity or a state or municipal facility. Further, it is
unclear whether Landy or Dean called Blackerby to interview
Plaintiff out of a legal obligation to do so, or for some
other reason. Resolution of these matters is better addressed
after Landy, Dean, and Clifton Springs have appeared in the
case. See Nance, 912 F.2d at 607. As a result, for
the purposes of screening the ...