United States District Court, E.D. New York
MEMORANDUM & ORDER
N. VITALIANO, UNITED STATES DISTRICT JUDGE
se plaintiff Latrese Carr commenced this 42 U.S.C.
§ 1983 action in the Southern District of New York, on
April 19, 2016, alleging various civil rights violations.
See ECF Dkt. No. 2 ("Compl.") at 1. The
case was transferred to this district, on October 21, 2016.
See ECF Dkt. No. 6. At the time of filing, Carr was
confined at Watertown Correctional Facility, see
Compl. at 1, from which he was subsequently released, on May
11, 2017, see Inmate Information for Latrese Carr,
ID No. 14A2840, New York State Department of Corrections and
Community Supervision, Inmate Population Information Search,
http://nysdoccslookup .doccs.ny.gov (last visited August 25,
2017). Carr's request to proceed in forma
pauperis (ECF Dkt. No. 1) is granted, solely for
purposes of this Order. For the reasons that follow, however,
his complaint is dismissed, with leave to amend in accordance
with the terms of this Order.
to the complaint, Carr was hired as a porter by defendant
Eddie Lesnjani, the manager of defendant Pinnacle Holdings
("Pinnacle"). See Compl. at 3. Carr
alleges that he worked for Lesnjani and Pinnacle, without
pay, from March 15, 2012 until January 5, 2014, and that the
Department of Labor ("DOL") awarded him back pay
for that work, on April 8, 2016. See Id. He seeks
$125 million in damages, see Id. at 5, as recompense
for the mental anguish, emotional strain, and defamation of
character that he claims to have suffered as a result of
defendants' alleged violations of his rights under the
Thirteenth Amendment to the United States Constitution and
Article I, § 17 of the New York State Constitution,
see Id. at 3.
pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)
(citation omitted). Pleadings submitted by a self-represented
party should be "liberally construed, "
id. (citation omitted), and "interpreted
'to raise the strongest arguments that they suggest,
'" Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996) (citation omitted). Nonetheless, a pro se
complaint must still "plead facts sufficient 'to
state a claim to relief that is plausible on its
face.'" Teichmann v. New York, 769 F.3d
821, 825 (2d Cir. 2014) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
as here, the plaintiff is proceeding in forma
pauperis, the district court must dismiss the complaint
if it "(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B). However, a
court generally should not dismiss a pro se
complaint "without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated." Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation
threshold matter, Carr has affirmatively pled that all of the
parties to this action- himself included-are residents of New
York, see Compl. at 2, and there is nothing in the
complaint that suggests otherwise. Thus, diversity
jurisdiction is plainly unavailable for any state law claims
contained in the complaint. See Lovejoy v. Watson,
475 F.App'x 792, 792 (2d Cir. 2012) ("The complaint
alleged that [the plaintiff] and the defendant resided in New
York, thereby precluding diversity jurisdiction.");
Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315,
322 (2d Cir. 2001) ("[Diversity jurisdiction is
available only when all adverse parties to a litigation are
completely diverse in their citizenships." (citations
even construing Carr's complaint liberally, it is clear
that he has not stated any federal claims on which relief
could be granted. Federal question jurisdiction exists where
"a well-pleaded complaint establishes either that
federal law creates the cause of action or that the
plaintiffs right to relief necessarily depends on resolution
of a substantial question of federal law." Bay Shore
Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734 (2d
Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v.
McVeigh, 547 U.S. 677, 690, 126 S.Ct. 2121, 2131, 165
L.Ed.2d 131 (2006)) (other citation omitted). Apparently
grabbing for this jurisdictional line, Carr invokes §
1983 as the ostensible basis for federal question
jurisdiction. See Compl. at 1. To state a claim
under § 1983, however, he must allege, inter
alia, that he was injured by a state actor or a private
party acting under color of state law. See Ciambriello v.
Cty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002).
Private conduct is generally beyond the reach of § 1983.
See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49-50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999);
Vaughn v. Phoenix House Programs of New York, No.
14-cv-3918, 2015 WL 5671902, at *4 (S.D.N.Y. Sept. 25, 2015)
(Section 1983 action that alleged, inter alia,
violations of the Thirteenth Amendment, "fail[ed] as a
matter of law because neither [the corporate defendant] nor
the individual [defendants are state actors, nor were they
acting under color of law."). It is a red flag that the
two defendants Carr names, Lesnjani and Pinnacle, are,
respectively, a private individual and a private company.
Neither is a state actor, and, moreover, there is no
indication whatsoever that they or any co-employees acted
under color of state law. Consequently, § 1983 cannot
supply the federal claim that Carr's complaint is
the complaint generously, it appears that Carr may be seeking
to assert claims under the Fair Labor Standards Act of 1938,
29 U.S.C. § 201 et seq. ("FLSA"), and
New York Labor Law ("NYLL"). However, because the
complaint offers only the most meager of factual allegations,
it is impossible for the Court to determine whether Carr can
even plausibly state a claim under FLSA-and, by extension,
the Court cannot conclude whether supplemental jurisdiction
should be exercised over any potential NYLL or other state
law claims. See, e.g., Elliot-Leach v. New York City
Dep't of Educ, 201 F.Supp.3d 238, 245 (E.D.N.Y.
2016) (dismissing purported FLSA claim where plaintiff
vaguely alleged that defendants "failed to pay [her]
wages owed to her pursuant to FLSA, " but
"offer[ed] no additional facts to support this charge,
including no reference to any specific provision of the FLSA,
no description of the uncompensated hours she worked, and no
mention of her wage rate" (first alteration in original)
(citing Nakahata v. New York-Presbyterian Healthcare
Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013))).
Moreover, if, as Can indicates in his complaint, he was
awarded back pay as part of a DOL settlement, see
Compl. at 3, he may have (and it is more than likely the
case), by accepting such award, waived any FLSA claim that he
previously possessed. See Wax Hung Chan v. A Tasteof Mao,
Inc., No. 15-cv-9723, 2017 WL 2973982, at *2
(S.D.N.Y.July 11, 2017) ("an employee waives his right
to sue [under the FLSA] once he accepts funds from a DOL
these reasons, while Carr's complaint must be dismissed,
he will be granted a second chance to demonstrate a valid
claim over which this Court has jurisdiction, by filing an
amended complaint, no later than 30 days after this Order is
docketed. Alternatively, Carr may elect to file any state law
claims in a state court of appropriate jurisdiction.
with the foregoing, plaintiffs complaint (ECF Dkt. No. 2) is
dismissed, pursuant ...