          08-2876-cv
          White v. St. Joseph’s Hospital




1                             UNITED STATES COURT OF APPEALS
2                                 FOR THE SECOND CIRCUIT
3
 4                                    SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
 7   ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
 8   32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
 9   COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
10   NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
11   NOT REPRESENTED BY COUNSEL.
12
13               At a stated term of the United States Court of Appeals for the Second Circuit,
14        held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the
15        City of New York, on the 10th day of March, two thousand ten.
16
17        PRESENT:
18                    JOHN M. WALKER, JR.,
19                    DEBRA ANN LIVINGSTON,
20                    GERARD E. LYNCH,
21                                Circuit Judges.
22        ______________________________________________
23
24        Saundra V. White,
25
26                      Plaintiff-Appellant,
27
28                      v.                                                  08-2876-cv
29
30        St. Joseph’s Hospital; PACE; University Hospital,
31        also known as Stony Brook University Hospital,
32        also known as University Medical Center at SUNY
33        at Stony Brook; David R. Smith, President, University Hospital;
34        Philip R. Schaengold, CEO, University Hospital;
35        Loretto Nursing Home; Michael J. Sullivan;
36        Governor’s Office, New York State; City of Syracuse;
37        Onondaga County; Oakwood Cemeteries; Laboratory Alliance;
38        United States of America; Onondaga County Government;
39        Unknown Defendants,
40
41                    Defendants-Appellees.
42        ______________________________________________
43
 1   FOR APPELLANT:                                  Saundra V. White, Syracuse, New York, pro se.
 2
 3   FOR APPELLEE
 4   UNITED STATES OF AMERICA:                       Andrew T. Baxter, United States Attorney for the
 5                                                   Northern District of New York (Paula Ryan
 6                                                   Conan, Assistant United States Attorney, on the
 7                                                   memorandum brief), Syracuse, New York.
 8
 9   FOR ALL OTHER APPELLEES:                        No appearances.
10

11           Appeal from a judgment of the United States District Court for the Northern District of

12   New York (McCurn, J.).

13           UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

14   AND DECREED that the judgment of the district court be AFFIRMED.

15           Plaintiff-Appellant Saundra V. White, pro se, appeals from the district court’s sua

16   sponte dismissal of her complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We assume the

17   parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

18   on appeal.

19           We review de novo the sua sponte dismissal of a complaint pursuant to § 1915(e).

20   See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). A complaint must plead “enough

21   facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

22   550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads

23   factual content that allows the court to draw the reasonable inference that the defendant is

24   liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). However,

25   “the pleadings of pro se litigants should be construed liberally, and should not be dismissed

26   unless it is clear that the plaintiff would not be entitled to relief under any set of facts that

27   could be proved consistent with the allegations.” Philips v. Girdich, 408 F.3d 124, 127 (2d

                                                       2
 1   Cir. 2005) (citations and internal quotation marks omitted); see also Harris v. Mills, 572 F.3d

 2   66, 72 (2d Cir. 2009).

 3           Here, the district court properly determined that White failed to state a claim upon

 4   which relief may be granted and, accordingly, dismissed her complaint pursuant to § 1915(e).

 5   In her amended complaint, White failed to name any defendants, listing only “unknown

 6   defendants.” Moreover, with respect to the defendants named in her original complaint, she

 7   failed in either the original or amended complaint to state facts sufficient for the district court

 8   to determine what, if any, actions are alleged to have been taken by each defendant so that the

 9   court might determine whether the claims have been properly pled. See Iqbal, 129 S.Ct. at

10   1949.

11           Insofar as White sought to bring an action pursuant to 42 U.S.C. § 1983, private actors

12   and institutions, such as the hospitals, nursing home, and cemetery named as defendants in

13   White’s original complaint, are generally not proper § 1983 defendants because they do not

14   act under color of state law. See Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

15   (1999). Insofar as White alleged that the private defendants were licensed by the state, the

16   presence of state funding or regulation, in the absence of some concerted action with state

17   officials, does not transform a private party’s actions into state action. See Blum v. Yaretsky,

18   457 U.S. 991, 1004-05 (1982).

19           In addition, States are not “persons” amenable to suit under §1983. See Will v.

20   Michigan Dep’t of State Police, 491 U.S. 58, 69 (1989); Huminski v. Corsones, 396 F.3d 53,

21   70 (2d Cir. 2005). While cities and counties may be sued under § 1983, see Monell v. Dep’t of

22   Soc. Servs., 436 U.S. 658, 690 (1978); Huminski, 396 F.3d at 70-71, White failed to allege that

23   any of the allegedly unconstitutional actions were taken pursuant to an official policy or
                                                      3
 1   custom, as required to state a § 1983 claim against a municipality, see Monell, 436 U.S. at

 2   691-94; Reynolds v. Giuliani, 506 F.3d 183, 190 (2d Cir. 2007).

 3          Insofar as White sought to bring an action pursuant to 42 U.S.C. § 1985, she provided

 4   merely “conclusory, vague, or general allegations of conspiracy to deprive [her] of

 5   constitutional rights,” which are insufficient to support a claim under § 1985. Sommer v.

 6   Dixon, 709 F.2d 173, 175 (2d Cir. 1983); Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003).

 7   Insofar as she sought to state a claim under 42 U.S.C. § 1986, this claim necessarily failed

 8   because she failed to state a claim under § 1985. See Graham v. Henderson, 89 F.3d 75, 82

 9   (2d Cir. 1996). With regard to White’s purported action under 42 U.S.C. § 1981, she failed to

10   allege any facts to support such a claim, which requires a showing that, inter alia, the plaintiff

11   is a member of a racial minority group and the defendants intended to discriminate against her

12   based on her race. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087

13   (2d Cir. 1993). Lastly, insofar as White attempted to state a claim against the United States

14   pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., she failed to allege that she

15   had exhausted her administrative remedies as required by that statute. See Keene Corp. v.

16   United States, 700 F.2d 836, 840 (2d Cir. 1983); see also 28 U.S.C. § 2675(a).

17          For the reasons stated above, the judgment of the district court is hereby AFFIRMED.

18
19
20                                                 FOR THE COURT:
21                                                 Catherine O’Hagan Wolfe, Clerk

22

23




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