Avent v. James
| Decision Date | 17 January 2020 |
| Docket Number | 19-CV-10923 (CM) |
| Parties | REUBEN AVENT, Plaintiff, v. NYS ATT. GEN. LETITIA JAMES; UNKNOWN CHARITY ASS. ATT. GENERALS; BIZ CENTRAL; AMBER BIGICA, Defendants. |
| Court | U.S. District Court — Southern District of New York |
ORDER TO AMEND
Plaintiff, appearing pro se, brings this action under 42 U.S.C. §§ 1981 and 1983 and state law. By order dated December 30, 2019December 30, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis.
Plaintiff alleges that he is the "President and Founder and the top executive responsible for . . . establishing the potential establishment of . . . African World Wide Unity Incorporated" as a nonprofit. Plaintiff seeks damages in connection with his efforts to obtain a charitable solicitation registration number. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
Plaintiff Reuben Avent alleges that he is "a black individual seeking to establish a legal African American charity organization with a state legal entity." (ECF No. 2, at 2.)1 On June 24, 2019, Plaintiff hired Biz Central to file documents to establish African World-Wide Unity, Inc. (AWWU) as nonprofit organization and to obtain a charitable solicitation registration number. (ECF No. 2, at 4.)
On June 27, 2019, Amber Bigica of Biz Central informed Plaintiff that his paperwork had been completed with the exception of his charitable solicitation registration. She explained to Plaintiff that (Id.)
Plaintiff argues that "state law charity registration papers did not take 30 days to be processed[;] it actually takes 5 days of review from state attorney general defendants and nothing would stop defendant Bigica from filing those papers after receiving an EIN number for Plaintiff's business." (Id.)
On July 10, 2019, Bigica told Plaintiff that she was (Id. at 5.)
On August 24, 2019, Plaintiff complained to Bigica that he was being "denied access to grants, [and] collaboration [with] other charities[,] sponsors[,] and donors because of the absence of any charity registration number. In response, Bigica sent Plaintiff a screenshot from an online charity registration finder - not from the Attorney General's registration bureau. Plaintiff points out that first "you file for a charity registration number, then you check th[e] database to find the verified charity number." (Id.) Plaintiff asserts that Bigica "colluded with the state defendants to preclude Plaintiff from participating in . . . charity opportunities . . . to cause the injuries that Plaintiff endured." (Id.)
Plaintiff asserts that Bigica made this "false excuse" in order "to deny plaintiff . . . his civil rights and . . . . discriminate against him on . . . account of his race and to prevent his race class from receiving any charity." (Id. at 5-6.) Bigica "continued to intentionally mislead the plaintiff into believing the problem was with the attorney general charity office when she never filed the charity registration." (Id.)
Plaintiff contends that Bigica was either "acting directly on orders and/or in collusion with the state attorney general defendants . . . or acting off of state policy and customs designed to bring about the same discriminating result . . . and disenfranchise [Plaintiff] as a legal charity." (Id.)
Plaintiff sues New York State Attorney General Letitia James and unidentified Assistant State Attorneys General. "[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogatedthe states' Eleventh Amendment immunity . . . ." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). "The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state." Id.
New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977). Plaintiff's asserts claims under § 1983 against New York State Attorney General Letitia James and her subordinates seeking millions in compensatory and punitive damages. (ECF 2, at 11.) The Eleventh Amendment bars Plaintiff's official-capacity claims in federal court for damages against Defendant James and the unidentified Assistant Attorneys General, and the Court therefore dismisses these claims.2 28 U.S.C. § 1915(e)(2)(iii).
A claim for relief under § 1983 must allege facts showing that each defendant acted under the color of a state "statute, ordinance, regulation, custom or usage." 42 U.S.C. § 1983. Private parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) ().
Defendants Biz Central and Biz Central employee Amber Bigica are private parties who do not work for any state or other government body. Plaintiff contends that the Biz Centralemployee was either "acting directly on orders and/or in collusion with the state attorney general defendants . . . or acting off of state policy and customs designed to bring about the same discriminating result . . . and disenfranchise [Plaintiff] as a legal charity." (ECF No. 2, at 5.) Plaintiff's allegation that Biz Central or its employee colluded with the New York State Attorney General's Office to delay or deprive him of a charitable solicitation registration number because of his race is without factual support and is therefore insufficient to plead that this private individual and entity qualify as state actors. Plaintiff's allegations thus fail to state a claim under § 1983 against these private defendants.
A § 1983 plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ().
Plaintiff does not allege any facts showing how Defendant Letitia James was personally involved in the events underlying his claims. She cannot be held liable under § 1983 solely because she employs or supervises a person who allegedly violated the plaintiff's rights.
Moreover, Plaintiff's allegations that New York State Attorney General Letitia James or her subordinates discriminated against Plaintiff because of his African American race are wholly conclusory. Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl.Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). But the Court need not accept "[t]hreadbare recitals of the elements of a cause of action," which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
Here, Plaintiff does not plead any facts that would give rise to an inference that his race was the cause of the delay in processing his charitable solicitation registration. "[T]he mere fact that something bad happens to a member of a particular racial group does not, without more, establish that it happened because the person is a member of that racial...
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