Vivian Hill Ann v. Susan Wiviott

ORDER TO AMEND

LAURA TAYLOR SWAIN Chief United States District Judge

Plaintiff Vivian Hill Ann, who is appearing pro se, filed this action raising claims under the Court's federal question jurisdiction. She asserts claims of “discrimination of race Afro-American disability, whistleblower protection, deni[al] [of] medical records, HIPAA violation since 2017, retaliations for filing civil rights complaint, suit, domestic terrorism of break-ins [and] destruction of private property.” (ECF 2, at 2.) She sues: (1) Susan Wiviott, the Chief Executive Officer of the Bridge, Inc.; (2) the Bridge, Inc.; (3) “Queens Kendra Sheriffs, ” and (4) the New York City Department of Health & Mental Hygiene. In her complaint, Plaintiff asks for: (1) damages, (2) the appointment of counsel, (3) “the attorney to complete the complaint [and] cause[] of action documents, ” and (4) the Court to issue a temporary restraining order “to stop the domestic terrorism violence against [her].” (Id. at 6.) Plaintiff has also filed an application for a temporary restraining order and a preliminary injunction in which she asks the Court to enjoin the defendants from “putting [her] life [and] limb in mental jeopardy, destroying her door and window and leaving the open [and] unprotected household property exposed to further burglaries.” (ECF 3, at 1.) In addition, Plaintiff has filed an application for the Court to request pro bono counsel. (ECF 4.)

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By order dated November 10, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis (IFP). For the reasons set forth below, the Court denies Plaintiff's application for a temporary restraining order and a preliminary injunction, as well as her application for the Court to request pro bono counsel, but grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss an IFP 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. 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.

The Supreme Court of the United States has held that, under Rule 8, a complaint must 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

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misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. 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. Id. (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. at 679.

BACKGROUND

Plaintiff lives in New York, New York, and asserts that the events giving rise to her action occurred there. She alleges the following: On July 3, 2019, Jerry Gloster, a social worker employed by the Bridge, Inc. (“the Bridge”), assaulted her by forcing pills into her mouth and making her swallow them. As a result of Gloster's actions, Plaintiff went unconscious, fell, and hit her head, “which caused brain damage from the fall [and from] the overdose of drugs.” (ECF 2, at 6.)

Members of the New York City Sheriff's Office who are located in Queens have repeatedly broke down the door to Plaintiff's home, taken Plaintiff into custody, and hospitalized her. The New York City Department Health & Mental Hygiene, the Bridge, and “the Queens Sheriffs” have attacked her. (Id. at 5.) Plaintiff fears for her life because the defendants have:

assaulted, harassed, denied [Plaintiff her] civil [and] constitutional rights, [and] retaliated against [her] [Plaintiff has] private medical doctors who are trying to treat [her] for . . . neurological [and] medical conditions The defendants refused to give [her] medical records violating [the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and] interfer[e] with bogus [and] wrong diagnoses

(Id. at 5-6.)

Plaintiff has attached to her complaint a November 4, 2021, letter to “Undersheriff Bevelyn Barkley, ” of the “Queens Sheriff Office”; the letter was signed by Plaintiff and her

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husband, Harry Warren. (Id. at 10-15.) In the letter, Plaintiff and Warren allege the following: On November 1, 2021, Plaintiff was “apprehended . . . by . . . Queens Kendra Sheriffs[, ] . . . taken to Mount Sinai St. Luke's Hospital, ” and a deputy sheriff told Warren that he could not speak to Plaintiff and that Plaintiff “should not listen to” Warren. (Id. at 10.) The “Sheriffs used excessive force and broke [Plaintiff and Warren's] door again, ” and the Bridge “used the [Queens Kendra Sheriffs] as a paramilitary to terrorize” Plaintiff and Warren. (Id.) The Bridge “complained [that Plaintiff] was not getting admitted at the hospital for the doctor evaluations - then sent the sheriffs a second and third time to apprehend and force their bias. It was (not) a matter of a need for [Plaintiff's] hospitalization but their vendetta to being sued and punishment.” (Id. at 11.) Plaintiff “just got discharged from Mount Sinai Hospital West a couple of weeks ago. Act Team visited her, and she got a clear bill of health. Two weeks later, they lie[d] [that] they had not seen [Plaintiff] for months, mislead and cooping [sic] the sheriffs.” (Id.) When deputy sheriffs brought Plaintiff to a hospital on November 1, 2021, she was released within hours. (Id. at 12.)

The Bridge “is in noncompliance with the safeguards listed in” Section 9.60 of the New York Mental Hygiene Law. (Id.) The Bridge “had (no valid) court order during most of the incidents of summoning sheriffs. They falsely allege[d] there was a court order as an underlying basis.” (Id. at 13.) Deputy sheriffs have been taking Plaintiff into custody and hospitalizing her “without seeking valid courts orders . . . since February 2021.” (Id.) In the summer of 2021, deputy sheriffs carried a court order “that expired in the fall of 2020, and was not an order for AOT but a date for a hearing.” (Id. at 14.) The defendants “illegally got any civil court orders from the NYS Court after October 27.” (Id. at 15.)

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DISCUSSION

Because Plaintiff asserts that the defendants have violated her federal constitutional rights, the Court construes Plaintiff's complaint as asserting claims under 42 U.S.C. § 1983.^[1]

A. State action, the Bridge, and Wiviott

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): Meadows, 963 F.3d at 243 (“State action [for the purpose of Section 1983 liability] requires both . . . the exercise of some right or privilege created by the State . . . and the involvement of a person who may fairly be said to be a state actor.”) (internal quotation marks and citation omitted, italics in original). Private entities are therefore not generally considered to be state actors. 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.”).

The activity of a private entity may be considered to be state action for the purpose of Section 1983 liability, however, in the following three situations: (1) when the entity acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) when the

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state provides significant encouragement to the entity, the entity willfully participates in joint activity with the state, or the entity's functions are entwined with state policies (the “joint action” or “close nexus” test); or (3) when the state has delegated a public function to the entity (the “public function” test). See Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (citation omitted).

The fundamental question under each test is whether the private entity's challenged actions are “‘fairly attributable'” to the state. Id. (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)). In analyzing whether a private entity acted as a state actor for the purpose...