United States District Court, W.D. New York
William M. Skretny United States District Judge
Emeka Dominic Okongwu, proceeding pro se, has filed
a Second Amended Complaint (Docket No. 13) as directed by
this Court and now moves for the issuance of a summons
(Docket No. 14). For the reasons discussed below, the
majority of Plaintiff's claims are dismissed pursuant to
28 U.S.C. §§ 1915(e)(2)(B); one may proceed to
was granted permission to proceed in forma pauperis.
(Docket No. 3). Section 1915(e)(2)(B) of 28 U.S.C. therefore
requires the Court to conduct an initial screening of the
Second Amended Complaint. In evaluating the Second Amended
Complaint, the Court must accept as true all of the factual
allegations and must draw all inferences in Plaintiff's
favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d
Cir. 2003) (per curiam); King v. Simpson, 189 F.3d
284, 287 (2d Cir. 1999). While “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), pleadings submitted pro se must still meet
the notice requirements of Rule 8 of the Federal Rules of
Civil Procedure. Wynder v. McMahon, 360 F.3d 73 (2d
Cir. 2004). “Specific facts are not necessary, ”
and 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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citation omitted)); see also Boykin v.
Keycorp, 521 F.3d 202, 213 (2d Cir. 2008) (discussing
pleading standard in pro se cases: “even after
Twombly, dismissal of a pro se claim as
insufficiently pleaded is appropriate only in the most
unsustainable of cases”). Generally, the Court will
afford a pro se plaintiff an opportunity to amend or
to be heard prior to dismissal “unless the court can
rule out any possibility, however unlikely it might be, that
an amended complaint would succeed in stating a claim.”
Abbas v. Dixon, 480 F.3d 636, 639 (quoting Gomez
v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir.
1999) (per curiam)).
brings this action pursuant to 42 U.S.C. § 1983.
“To state a valid claim under 42 U.S.C. § 1983,
the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United
States.” Whalen v. County of Fulton, 126 F.3d
400, 405 (2d Cir. 1997) (citing Eagleston v. Guido,
41 F.3d 865, 875-76 (2d Cir. 1994)).
states that he and Doris Agbala had twin daughters in 1984,
and that he became the sole caretaker of the two girls when
she returned to her home country of Nigeria due to health
concerns. (Docket No. 13, p. 4). Plaintiff was accused of
sexual abusing his daughters in a Family Court proceeding in
1988. (Id. p. 5). Plaintiff alleges that he was
cleared, but due to a finding of “negligence” the
girls were placed in foster care and he was granted regular
visitation. (Id.). The foster mother of the girls,
Defendant Ollie McNair, made new allegations of sexual abuse
against Plaintiff based on statements that she claimed the
girls had made to her. (Id. p. 6). On February 1,
1994, Plaintiff was indicted, “along with two other
individuals, with a slew of criminal conducts, including but
not limited to multiple counts of sexual abuse[ ] of his own
twin daughters.” (Id.). Plaintiff was later
convicted. The conviction was reversed in 2010, but Plaintiff
remained incarcerated until December of 2011 when the state
determined that he would not be retried. Plaintiff states
that “[h]is arrest and conviction record have also been
alleges that Defendant McNair lied about the alleged evidence
of sexual abuse, and claims that (non-Defendant) Deborah
Merriefield, identified as the then Commissioner for the Erie
County Department of Social Services, “failed to train,
supervise or discipline Ollie McNair in matters of managing
and observing affairs of the children under her ward”.
(Id. p. 7).
next accuses Sheriff Howard of failing to properly
investigate the false allegations. (Id. p. 8).
Plaintiff notes that there were allegations that blood was
found on the mattress identified as the site of the abuse, as
well as “sexual abuse paraphernalia in that
basement.” (Id.). Plaintiff alleges that
Defendant Howard was deliberately indifferent and as a result
“falsely arrested, maliciously prosecuted and falsely
imprisoned” Plaintiff. (Id. p. 9). Plaintiff
likewise accuses then Erie County District Attorney Sedita
and Assistant District Attorneys Cooper and Bridge of
coercing and coaching the twins. (Id.). Plaintiff
alleges that Defendants Cooper and Bridge “knew or
should have known” that the testimony of the twins
concerning sexual abuse was false. (Id. p. 10).
Plaintiff accuses Assistant District Attorney Flaherty of
holding Plaintiff in jail for nearly two years, presumably
referring to the time between the reversal of Plaintiff's
conviction and the decision to end the prosecution.
Defendant Dr. Lazoritz, Plaintiff alleges that he falsely
confirmed damage to the hymen of one of the girls, when
“he knew or should have known” that the damage
existed “prior to the dates of the allegations.”
(Id. p. 11).
alleges in purely conclusory terms that all Defendants except
Leary conspired to deprive him of his constitutional rights.
(Id.). Similarly, Plaintiff makes a claim under the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”) U.S.C. § 1961 et seq.
(Id.). Plaintiff's RICO allegations consist of a
repetition of his claims against each Defendant “in the
enterprise of aiding two or more corrupt organization members
to attain monetary gain in the excess of $10, 000 for
services to be rendered in relation to plaintiff's
twins.” (Id.). While unspecified, this appears
to refer to the money paid to foster parent McNair.
Plaintiff sets forth allegations regarding his treatment
while confined, alleging that Defendant Leary and others
failed to protect him when he was “on numerous
occasions [attacked] and brutally beaten by fellow
inmates.” (Id. p. 12). Plaintiff provides no
further details as to the alleged assaults or the year in
which they occurred. Plaintiff also alleges the loss of
various documents and other items of personal property at an
unspecified time through unspecified means.
Against Foster Parent McNair
alleges that Defendant McNair, who acted as a foster parent
to Plaintiff's daughters, made false statements to the
police about his daughters. Plaintiff appears to concede
certain corroborating facts including blood on a basement
mattress and items associated with sexual abuse, but alleges
that Defendant McNair's lies were the basis of the
prosecution against him. Plaintiff characterizes Defendant
McNair as “an official of the Erie County Department of
Social Services, ” but this seems to refer only to her
role as a foster parent. (Docket No. 13, p. 3, 5).
order to recover in an action under § 1983, a plaintiff
must show a deprivation of his constitutional or statutory
rights by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988); Bryant v.
Maffucci, 923 F.2d 979, 982-83 (2d Cir. 1991).
Therefore, it is necessary to examine whether Defendant
McNair, as foster parent to Plaintiff's daughters, could
be considered to be a person acting under color of state law.
In order to meet this standard, a person must have exercised
power “possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” Polk County v.
Dodson, 454 U.S. 312, 317-18 (1981) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)). Similarly,
as is the case in the context of the Fourteenth
Amendment's state action requirement, a deprivation of a
federal or constitutional right is actionable pursuant to
§ 1983 when the deprivation was caused “by the
exercise of some right or privilege created by the State . .
. or by a person for whom the State is responsible.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). “Thus, generally, a public employee acts under
color of state law while acting in his official capacity or
while exercising his responsibilities pursuant to state
law." West, 487 U.S. at 50.
of Appeals that have examined whether foster parents are
state actors under Section 1983 have resoundingly answered in
the negative.” Smith v. Gristina, 11 CV 2371
VB, 2012 WL 247017, at *3 (S.D.N.Y. Jan. 6, 2012) (collecting
cases). Further, a private citizen who files a police report
is not acting under color of state law. Carrillos v. Inc.
Vil. of Hempstead, 87 F.Supp.3d 357 (E.D.N.Y. 2015).
Thus, Defendant McNair is not, by virtue of being a foster
parent, considered an employee of the County of Erie, nor did
she act under color of state law by contacting the police.
a private actor may act under color of state law when she is
a willful participant in joint activity with the state or its
agents, a “merely conclusory allegation that a private
entity acted in concert with a state actor does not suffice
to state a § 1983 claim against the private
entity.” Ciambriello v. County of Nassau, 292
F.3d 307, 324 (2d Cir. 2002). Plaintiff alleges that
Defendant McNair, by falsely reporting his daughters'
allegations, “initiated this witch hunt”. (Docket
No. 13, p. 8). Plaintiff then alleges that law enforcement
conducted an improper investigation and that the prosecution
used “fabricated evidence that was initially brought to
the authorities by Ollie McNair.” (Id. p. 9).
allegations, presumed true at this stage of the proceedings,
fail to establish that Defendant McNair was a state actor
subject to suit under § 1983. As noted, Defendant McNair
did not act under color of state law as a foster parent, and
she did not act under color of state law when she reported
the accusation against Plaintiff - whether true or false - to
the police. Nor do Plaintiff's allegations establish that
she was a willful participant in joint activity with the
state or its agents. Plaintiff alleges that Defendant McNair
lied and that the authorities based their prosecution on
those lies, but nothing further is alleged that would
establish ongoing participation in the prosecution, or
otherwise support the claim that Defendant McNair operated
under color of state law. Plaintiff's § 1983 claims
against Defendant McNair are therefore dismissed.
Against the District Attorney and Assistant ...