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Okongwu v. County of Erie

United States District Court, W.D. New York

June 21, 2017

COUNTY OF ERIE, et al., Defendants.


          William M. Skretny United States District Judge


         Plaintiff, 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 service.


         Plaintiff 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)).

         Plaintiff 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)).

         Plaintiff's Allegations

         Plaintiff 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 expunged.” (Id.).

         Plaintiff 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).

         Plaintiff 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. (Id.).

         Regarding 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).

         Plaintiff 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.

         Finally, 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.

         Claims Against Foster Parent McNair

         Plaintiff 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).

         In 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.

         “Courts 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.

         Although 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).

         These 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.

         Claims Against the District Attorney and Assistant ...

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