Byng v. Kelly

• Decision Date: 24 February 2023
• Docket Number: 6:22-CV-1406 (DNH/ATB)
• Parties: KEVIN V. BYNG, Plaintiff, v. BOB KELLY, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

KEVIN V. BYNG, Plaintiff, v. BOB KELLY, et al., Defendants.

No. 6:22-CV-1406 (DNH/ATB)

United States District Court, N.D. New York

February 24, 2023

KEVIN V. BYNG, Plaintiff, pro se

ORDER AND REPORT-RECOMMENDATION

ANDREW T. BAXTER United States Magistrate Judge

The Clerk has sent to the court for review a complaint purportedly brought pursuant to 42 U.S.C. § 1983, filed by plaintiff Kevin Byng. (Dkt. No. 1) (“Compl.”). Plaintiff has also moved to proceed in forma pauperis. (Dkt No. 2).

I IFP Application

Plaintiff declares in his IFP application that he is unable to pay the filing fee. (Dkt. No. 2). After reviewing his application and supporting documents, this court finds that plaintiff is financially eligible for IFP status.

However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B)(i) -(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555).

In addition, Fed.R.Civ.P. 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them' is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Complaint^[1]

Plaintiff is a sixty-two year old man “with serious debilitating medical” and mental health issues.^[2] (Compl. ¶ 2). Plaintiff moved into an apartment at Perretta Towers leased through the Utica Municipal Housing Authority^[3] (“UMHA”) on September 1, 2022. (Id. ¶ 10). Defendant Bob Kelly was the Executive Director (“E.D.”) of the UMHA, while defendant Bob Connelly was responsible for security at Perretta Towers.

Plaintiff alleges the former occupant of his apartment was a drug dealer who ran a prostitution ring out of the apartment. (Id. ¶ 15). Because of the prior occupant's activities, there were numerous individuals “knocking on [plaintiff's] door at all hours of the night” and threatening him when he didn't answer the door. (Id. ¶ 14). When plaintiff reported these incidents to defendant Connelly, Connelly told plaintiff he was “full of shit” and that he would “get” him. (Id. ¶ 15). When plaintiff informed Connelly that unauthorized individuals could gain entry to his building by “pulling hard on the locked security door[,]” Connelly did not address the issue. (Id. ¶ 24). Plaintiff later wrote a letter to E.D. Kelly about his safety and health concerns, but never received a response. (Id. ¶¶ 20-21). On several occasions, plaintiff called for security but no one responded. (Id. ¶¶ 31, 35).

Shortly after moving into Perretta Towers, plaintiff was ordered to Connelly's office after having “a few women over to his apartment”. (Compl. ¶ 11). Connelly accused plaintiff of selling drugs, and told him “it is my job to build a case against you to evict you, and I am going to get you.” (Id. ¶ 12). When plaintiff informed two residents and two UMHA employees about Connelly's threat, they told him that Connelly is “no good and threatens people all the time.” (Id. ¶ 13).

In October of 2022, plaintiff had “another guest stay . . . with him overnight[.]” (Id. ¶ 16). She returned two days later “screaming outside that two . . . men were trying to rape her.” (Id. ¶ 16). These men were actually members of the Utica Police Department who were searching for the woman. (Id. ¶ 17). The next day, plaintiff was called down to E.D. Kelly's office. (Id. ¶ 18). E.D. Kelly threatened to evict plaintiff and prohibited him from having anymore overnight guests. (Id.). After his meeting with E.D. Kelly, Connelly threatened plaintiff, stating “. . . I am going to Mr. Kelly's office to get you evicted.” (Id. ¶ 19).

In November of 2022, plaintiff began dating “an African American woman named Zhane Barnes,” whose mother lived in the same building as plaintiff. (Compl. ¶ 22). Ms. Barnes stayed overnight at plaintiff's apartment on a few occasions, without issue. (Id. ¶¶ 22, 23). Then, on one occasion when plaintiff and Ms. Barnes were entering the community room at Perretta Towers, E.D. Kelly approached the two of them, screaming “that black woman does not live here, she is not allowed in this building, you are going to be evicted.” (Id. ¶ 23). Plaintiff decided not to see Ms. Barnes anymore because of the “racial profiling and fear of being evicted.” (Id. ¶ 25). Ms. Barnes was later buzzed in by her mother, and went to plaintiff's apartment uninvited where he informed her that they could not see each other anymore. (Id.). The next day, plaintiff was called down to E.D. Kelly's office again. (Id. ¶ 26). During this meeting, E.D. Kelly stated “it is your fault for what happened last night with that black woman. I am going to evict you.” (Id. ¶ 26).

At the end of November of 2022, when plaintiff was suffering from Covid-19, he asked his friend Monoya Houston, who was an African American woman, to stay with him to help him during his recovery. (Id. ¶¶ 29-30). While Ms. Houston was staying with plaintiff, defendant E.D. Kelly knocked on his door at 9 a.m. (Id. ¶ 32). When he saw Ms. Houston sleeping, E.D. Kelly stated “another black woman? You are finished, am [sic] going to start the eviction process now.” (Id.). When plaintiff tried to explain why she was staying there, E.D. Kelly said “what is it with you and the black women? You are going to be kicked out on the street, where you belong.” (Id. ¶ 33).

Plaintiff requests a temporary injunction to “prohibit[] defendants from evicting [p]laintiff without the required due process of law[,]” and a mediation session with the defendants to create a payment plan for past due rent or, in the alternative, damages in the amount of $250,000. (Compl. ¶ 40).

III. Section 1983

Because plaintiff is a pro se litigant, the court must “read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Plaintiff's allegations that defendants violated his First Amendment right to freedom of association most strongly suggest a claim under 42 U.S.C. § 1983.

A claim for relief under 42 U.S.C. § 1983 must allege facts showing that the defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Thus, to state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). Private parties are generally not state actors, and are therefore not usually liable under Section 1983. Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (quoting 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) (“[T]he United States Constitution regulates only the Government, not private parties. . . .”) (internal quotation marks and citation omitted).

For the purposes of section 1983, the actions of a nominally private entity are attributable to the state when:

(1) the entity acts pursuant to the ‘coercive power' of the state or is ‘controlled' by the state (‘the compulsion test'); (2) when the state provides ‘significant encouragement' to the entity, the entity is a ‘willful participant in joint activity with the [s]tate,' or the

...