18‐1350‐cv
Brown v. City of New York

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 16th day of September, two thousand nineteen.

PRESENT:            RICHARD C. WESLEY,
                    DENNY CHIN,
                    JOSEPH F. BIANCO,
                                         Circuit Judges.
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MARGIE BROWN,
                                        Plaintiff‐Appellant,

                                        v.                                         18‐1350‐cv

CITY OF NEW YORK, RALPH BROWN, MRS.
VASQUEZ, ROSE NANTENGO, ELISA SANCHEZ,
L. MORRISON, SUSAN NAYOKITH, MS. SHOUN,
DHS MAGNOLIA SHELTER SUPERVISOR, ANDRI
ZATALOKIN, DHS PROGRAM ANALYST, JASON
TUTTLE, DHS RECORDS OFFICER,
                                        Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT:                                     JONATHAN ROMBERG, Seton Hall
                                                             University School of Law, Center for Social
                                                             Justice, Newark, New Jersey.
FOR DEFENDANTS‐APPELLEES:                  No appearance.

FOR AMICUS CURIAE CITY OF                  INGRID R. GUSTAFSON, Assistant
NEW YORK:                                  Corporation Counsel (Richard Dearing, Fay S.
                                           Ng, Assistant Corporation Counsels, on the
                                           brief), for Zachary W. Carter, Corporation
                                           Counsel of the City of New York, New York,
                                           New York.1

              Appeal from the United States District Court for the Eastern District of

New York (DeArcy Hall, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff‐appellant Margie Brown appeals from a judgment entered by the

district court on April 20, 2018 dismissing sua sponte her pro se, in forma pauperis

complaint against the City of New York and several employees from the Department of

Homeless Services (ʺDHSʺ) (collectively, ʺDefendantsʺ) for damages resulting from

alleged dangerous conditions and negligent treatment that she experienced at New

York City homeless shelters. The district courtʹs reasoning was set forth in a

memorandum and order entered April 12, 2018.

              Brown alleges violations of her rights under federal and state law in

connection with her stays in the New York City homeless shelter system. We assume




1      Defendants were never served with process in this action, and the City now appears as
amicus curiae.
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the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

              As alleged in the complaint, Brown has been a client of DHS since

December 13, 2013. Since then, Brown has filed many complaints against DHS

employees and other city officials, alleging various instances of abuse, harassment, and

threats from other shelter residents. Brown was transferred from DHSʹs Magnolia

shelter to the Tillary Street shelter in September 2016. While at the Tillary Street shelter,

Brown was allegedly subjected to numerous incidents of harassment and abuse ranging

from physical attacks, to being threatened by residents, to having blood thrown on her

while she was asleep.

              Brown brought suit in both the Southern District of New York and the

Eastern District of New York. The Southern District of New York action was

transferred to the Eastern District of New York, where the cases were consolidated. The

district court then exercised its power under 28 U.S.C. § 1915(e)(2)(B) and dismissed

Brownʹs complaint sua sponte after concluding that the complaint did not state a claim

under federal law for which relief could be granted.

                                STANDARD OF REVIEW

              We review de novo a district courtʹs sua sponte dismissal of an in forma

pauperis complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Milan v. Wertheimer, 808 F.3d

961, 963 (2d Cir. 2015) (per curiam). We accept as true all facts described in the


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complaint but need not accept ʺconclusory allegations or legal conclusions couched as

factual [] allegations.ʺ Id. (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)).

              Under § 1915(e)(2), a district court ʺshall dismiss [a] case at any time if the

court determines thatʺ the action ʺ(i) is 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.ʺ 28 U.S.C. § 1915(e)(2). ʺSua sponte dismissal of a pro se

complaint prior to service of process is a ʹdraconian device,ʹ which is warranted only

when the complaint lacks an arguable basis either in law or in fact.ʺ Benitez v. Wolff, 907

F.2d 1293, 1295 (2d Cir. 1990) (per curiam) (citations and internal quotation marks

omitted).

                                        DISCUSSION

              On appeal, Brown challenges the district courtʹs dismissal of her 42 U.S.C.

§ 1983 claim alleging constitutional violations of her substantive due process rights and

the dismissal of her other remaining claims.

       1.     Substantive Due Process Claim

              The Due Process Clause ʺprotects individual liberty against certain

government actions regardless of the fairness of the procedures used to implement

them.ʺ Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal quotation

marks omitted). As a general rule, however, the Due Process Clause does not require

the State to protect an individual against acts of violence committed by a private party.


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See DeShaney v. Winnebago Cty. Depʹt of Soc. Servs., 489 U.S. 189, 197 (1989) (ʺ[A] Stateʹs

failure to protect an individual against private violence simply does not constitute a

violation of the Due Process Clause.ʺ). This Court has recognized two limited

exceptions to the DeShaney rule that would permit substantive due process liability.

These narrow exceptions apply when the state: (1) ʺassisted in creating or increasing the

danger to the victim,ʺ or (2) had a ʺspecial relationshipʺ with the victim. Matican v. City

of New York, 524 F.3d 151, 155 (2d Cir. 2008) (internal quotation marks omitted).

              a.         State‐Created Danger Exception

              To warrant substantive due process liability under the state‐created

danger exception, a defendant must take affirmative action that ʺcommunicates . . .

official sanction of private violenceʺ to the perpetrator. Okin v. Vill. of Cornwall‐On‐

Hudson Police Depʹt, 577 F.3d 415, 429 (2d Cir. 2009). The state‐created danger analysis

focuses on the Stateʹs affirmative interactions with the perpetrator, not the victim. See

Pena v. DePrisco, 432 F.3d 98, 111‐12 (2d Cir. 2005); Dwares v. City of New York, 985 F.2d

94, 99 (2d Cir. 1993).

              Here, Brown alleges that Defendants committed two affirmative acts

leading to a state‐created danger: (1) they transferred Brown to the Tillary Street shelter,

and (2) they placed individuals who allegedly threatened her in her shelter room.

These acts alone, however, do not rise to the level of conduct resembling a ʺstate‐created

dangerʺ because Brown failed to allege facts showing that Defendants officially


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sanctioned or encouraged her perpetrators to commit the private acts of violence.

Brown failed to identify facts showing that merely assigning her to a new homeless

shelter or assigning her to a room with other women encouraged acts of physical

violence against her.

              Next, Brown contends that Defendants implicitly condoned the private

violence by failing to investigate or punish the perpetrators harming her. Brown relies

on this Courtʹs decisions in Okin and Pena. Those cases ‐‐ while recognizing a potential

situation where ʺrepeated, sustained inaction by government officialsʺ might constitute

implicit ʺprior assurancesʺ that violence would not be punished ‐‐ are inapplicable here.

Okin, 577 F.3d at 428 (citation omitted). This case is unlike Okin, where officers

repeatedly and ʺopenly expressed camaraderieʺ with a physical abuser and contempt

for the victim. Id. at 430. Similarly, this case is not akin to Pena, where officers

encouraged a driver to drink alcohol with them and then invited him to operate a

vehicle while intoxicated. Pena, 432 F.3d at 110‐11.

              Here, Brown did not allege that Defendants condoned or encouraged any

violence against her. She does not allege that the Defendantsʹ inaction constituted an

implicit ʺprior assuranceʺ that violence against Brown would go unpunished. Id. at 110

(ʺA failure to interfere when misconduct takes place, and no more, is not sufficient to

amount to a state created danger.ʺ (emphasis in original)). In sum, Brown failed to allege

facts that satisfy the state‐created danger exception.


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              b.      Special Relationship Exception

              Another exception to the DeShaney rule applies when the State has a

ʺspecial relationshipʺ with the victim. Matican, 524 F.3d at 155. This Court has

recognized that ʺ[s]pecial relationships arise ordinarily if a government actor has

assumed an obligation to protect an individual by restricting the individualʹs freedom

in some manner.ʺ Lombardi v. Whitman, 485 F.3d 73, 79 n.3 (2d Cir. 2007). We have

generally ʺfocused on involuntary custody as the linchpin of any special relationship

exception.ʺ Matican, 524 F.3d at 156.

              Brown makes two arguments in asserting that Defendants created a

ʺspecial relationshipʺ and therefore had a duty to protect her. First, Brown argues that

Defendants restricted her liberty by assigning her to a homeless shelter and not

permitting her to leave the shelter between 10:00 p.m. and 6:00 a.m. Second, Brown

argues that under this Courtʹs decision in Socʹy for Good Will to Retarded Children, Inc. v.

Cuomo (Socʹy for Good Will), 737 F.2d 1239 (2d Cir. 1984), Brown has the right to safe

conditions in a government‐run institution under the Due Process Clause. Both of

Brownʹs arguments are misplaced for the following reasons.

              First, Brown failed to allege facts showing that Defendants deprived

Brown of her liberty. Brown argues that the Defendants established a special

relationship by mandating that homeless individuals, like Brown, enter a shelter during

inclement weather. New York State laws and regulations, however, do not require


                                              7
clients to remain in homeless shelters. While they require the City to take steps to move

individuals into shelters, the City cannot force individuals to stay. See N.Y. Exec. Order

No. 151 (Jan. 3, 2016). Furthermore, once Brown elected to remain in a homeless shelter,

she was required to abide by the shelter rules; she cannot establish a special relationship

by claiming that the shelterʹs rules were too restrictive.

              Second, Brownʹs reliance on Socʹy for Good Will is unpersuasive. That case

‐‐ decided five years before the Supreme Court decided DeShaney ‐‐ is not applicable

here. In two decisions following Socʹy for Good Will, this Court has distinguished that

case and clarified the due process rights protected after DeShaney. See Suffolk Parents of

Handicapped Adults v. Wingate, 101 F.3d 818, 823 (2d Cir. 1996) (holding that Due Process

Clause confers no affirmative right to governmental aid and recognizing only one

exception to this rule: ʺwhen the State takes a person into its custody and holds him there

against his willʺ (emphasis in original) (internal quotations omitted)); Brooks v. Giuliani,

84 F.3d 1454, 1466 (2d Cir. 1996) (holding that ʺinvoluntary nature of the commitment

was determinativeʺ to Supreme Courtʹs analysis of special‐relationship exception).

Therefore, this Court has generally ʺfocused on involuntary custodyʺ in analyzing the

special relationship exception. See Matican, 524 F.3d at 156. Because Brown failed to

allege facts showing she was involuntarily held in custody, Brown failed to establish a

special relationship.




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         2.   Remaining Claims

              a.     Municipal Liability

              We affirm the district courtʹs dismissal of Brownʹs section 1983 claim for

municipal liability based on the alleged violation of her substantive due process rights.

To plead a municipal liability claim, Brown must allege ʺthat [s]he suffered the denial of

a constitutional right that was caused by an official municipal policy or custom.ʺ

Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019). Where, as here, the

complaint failed to allege that Defendantsʹ conduct violated Brownʹs constitutional

rights, the municipality is generally not liable for the policy or custom pursuant to

which the conduct was performed.

              b.     Unlawful Search and Seizure under the Fourth Amendment

              Brown further contends that her Fourth Amendment right to be secure in

her papers and effects against unreasonable seizures and her statutory rights to privacy

were violated because she discovered her personal emails in DHS case records. Brown,

however, alleged no facts identifying an unlawful search or seizure of her emails or

private email account. Accordingly, Brownʹs Fourth Amendment claim is without

merit.

              c.     State Tort Claims

              Finally, Brown contends that her complaint states viable claims under

state tort law. Brownʹs complaint contains a general reference to ʺnegligenceʺ in the


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context of her civil rights violation allegations and mentions several instances of

ʺnegligentʺ behavior by city employees. These legal conclusions, however, even viewed

favorably to Brown, do not satisfy the pleading standard to plausibly state a claim for

negligence under state tort law. See Ashcroft v. Iqbal, 556 U.S. 662, 680‐81 (2009). As a

result, we conclude that Brownʹs tort claims were properly dismissed.

                                         *   *    *

              While district courts should not lightly resort to sua sponte dismissal of a

pro se complaint, dismissal was proper here because, as the district court noted, the

complaint is largely unintelligible and ʺlacks an arguable basis either in law or in fact.ʺ

See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Even liberally construed, Brownʹs

complaint fails to allege a viable substantive due process claim, and her remaining

claims are similarly without merit.

              We have considered Brownʹs remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine OʹHagan Wolfe, Clerk




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