Dounce Al Dey v. Eye Express Optical
| Decision Date | 28 June 2022 |
| Docket Number | 22-CV-3861 (LTS) |
| Parties | OLIVER-VAUGHN DOUNCE AL DEY, Plaintiff, v. EYE EXPRESS OPTICAL, Defendant. |
| Court | U.S. District Court — Southern District of New York |
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
Plaintiff who is appearing pro se, brings this action under various federal and state laws, alleging that Defendant violated his rights. By order dated May 20, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint but grants Plaintiff 30 days' leave to replead a claim under Title III of the Americans with Disabilities Act of 1990 (ADA).
The Court must dismiss an in forma pauperis complaint or any portion of the complaint, 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 of the claims raised. 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 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. 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.
Plaintiff Oliver-Vaughn Dounce Al Dey invokes both the Court's federal question and diversity of citizenship jurisdiction and purports to assert claims under multiple federal and state laws. He sues Eye Express Optical, a private optometrist and retail eyeglass and lens store located in Bronx County, New York.
The following allegations are taken from the complaint. On February 2, 2022, Plaintiff went to Eye Express to get replacement lenses for his eyeglasses. An employee named Nicole told Plaintiff that he was required to wear a mask in the store to help prevent the spread of Covid-19. Plaintiff states that he was previously told over the phone that he did not need to wear a mask, “but at appointment by racial decriminalization discriminated against plaintiff at there office because of medical condition can't breath.”[1] (ECF 2, at 1.) Nicole told Plaintiff that if he did not put a mask on she would “call the police or security to have plaintiff remove” from the store. (Id.)
Plaintiff alleges that “[t]here was also no sign by consumer affair posted or exempt federal law, office agent in violation 42 USC 12132 section no displayed for exemption violate 241, 242,” and that Nicole said “she don't care about the law because its her rules.” (Id.)
Plaintiff sent Defendant a “notice of claim,” which he attaches to the complaint, in which he threatened to sue Defendant “for pain suffering cause by your delay plus punitive damages $100,000.” (Id. at 4.) Plaintiff's notice stated that if Defendant would “remedy the issue by March 9, 2022” by replacing his lenses, he would withdraw his claim. (See id. at 1-2.) Defendant responded by informing Plaintiff that it does not “want to service plaintiff any more.” (Id. at 2.)
The complaint references several federal and state statutes. For example, under the heading “Jurisdiction,” Plaintiff lists 42 U.S.C. §§ 1983, 1985, 1986, 1988; 18 U.S.C. §§ 241, 242; and 42 U.S.C. § 12132. (See id. at 1.) He also references several state laws and attaches excerpts from news articles pertaining to mask mandates.
Plaintiff seeks “75,000 dollars fine to be paid the [sic] the government for violation of APA HIPPA the law plus punitive damages disbursement damages to plaintiffs to deny service, statement there no action going on in any court within this matter pertaining to plaintiff knowledge.” (Id. at 3.)
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.” West v. Atkins, 487 U.S. 42, 48-49 (1988). A claim for relief under Section 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 generally are not 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) (). As Defendant Eye Express Optical is a private party and does not appear to work for any state or other government body, the Court dismisses Plaintiff's Section 1983 claims against Defendant for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Court construes Plaintiff's reference to 42 U.S.C. § 1985, as attempting to assert a claim under Section 1985(3) for conspiring to deprive him of his civil rights. To state a claim of conspiracy under Section 1985(3), a plaintiff must show that there exists: (1) a conspiracy; (2) for the purpose of depriving the plaintiff of the equal protection of the laws, or the equal privileges or immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of her right or privilege as a citizen of the United States. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). “[T]he [§ 1985(3)] conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.” Id. (internal quotation marks and citation omitted). “[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Claims under Section 1985 must be alleged “with at least some degree of particularity” and must include facts showing that the “overt acts which defendants engaged in . . . were reasonably related to the promotion of the claimed conspiracy.” Hernandez v. Goord, 312 F.Supp.2d 537, 546 (S.D.N.Y. 2004).
Plaintiff also references 42 U.S.C. § 1986. Section 1986 provides a remedy against individuals who “kn[ew] of and ha[d] the ability to aid in preventing a § 1985 conspiracy . . . [and] decline[d] to take steps preventing that conspiracy.” Wahad v. FBI, 813 F.Supp. 224, 232 (S.D.N.Y. 1993). Claims under this section are only valid “if there is a viable conspiracy claim under section 1985.” Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994).
Plaintiff alleges that a single Eye Express employee refused to serve him because he refused to wear a mask while in the store. These allegations do not suggest that there was any conspiracy, or that Defendant took any overt acts in furtherance of a conspiracy to discriminate against him or to violate his federally protected rights. Furthermore, despite Plaintiff's conclusory assertion that he was denied services based on his race, nothing in the complaint suggests the Eye Express employee's directive that Plaintiff wear a mask was motivated by racial or other class-based invidious discriminatory animus. The Court therefore dismisses plaintiff's conspiracy claims for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff also invokes 42 U.S.C. § 1988. Section 1988 allows a prevailing party in an action enforcing certain civil rights laws to recover reasonable attorney's fees. See 42 U.S.C. § 1988(b). Because Plaintiff is not a prevailing party, Section 1988 does not apply.
Plaintiff purports to assert claims under 18 U.S.C. §§ 241, 242, which are federal criminal statutes. A private individual cannot initiate the arrest and prosecution of another because “the decision to prosecute is solely within the discretion of the...
To continue reading
Request your trial