Opinion
19-CV-1389 (GBD)
05-22-2019
AKEEL ABDUL JAMIEL, Plaintiff, v. MAISON KAYSER@USA.COM, et al., Defendants.
ORDER OF SERVICE :
Plaintiff, appearing pro se, brings this action invoking the Court's federal question jurisdiction and asserting that his employer, Maison Kayser, discriminated against him on the basis of his race and perceived sexual orientation. Plaintiff claims that Defendants violated his rights under the Fourteenth Amendment, and committed hate crimes in violation of the federal hate crime bill enacted in 2009 - formally known as the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249. By order dated May 1, 2019, the Court granted Plaintiff's request to proceed in forma pauperis.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or portion thereof, 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
Plaintiff, using a form complaint for a civil case, initially named as defendants "Maison Kayser@USA.com"; Abel Viveros, a head baker at Maison Kayser; Gabby or Gabriela de la Vega, a general manager at Maison Kayser; Julian Ramirez, a sous chef at Maison Kayser; and Ana Ledesma, an employee in Human Resources at Maison Kayser. (ECF No. 2.) Using this Court's general complaint form, Plaintiff later submitted a second complaint naming Jennifer Villemin, another employee of Maison Kayser, as the sole defendant. (ECF No. 4.) The Clerk of Court docketed the second complaint as an amended complaint and terminated as parties the five defendants from the original complaint. (See id.) But Plaintiff attached a statement to the second complaint in which he asserted that he was submitting the new complaint as "additional documents to [his] recent lawsuit against Maison Kayser" and the other defendants named in the first complaint. (ECF No. 4 at 10.) In addition, on April 29, 2019, the Court received a letter from Plaintiff in which he asserted that he has been subjected to additional retaliation. (ECF No. 10.) As Plaintiff makes it clear that the second pleading and letter were intended to supplement his original pleading, the Court will treat the two complaints and letter (ECF Nos. 2, 4, 10) together as the operative complaint for this action.
Citations to the complaint refer to the pagination generated by the Court's electronic case filing system (ECF).
The following facts are taken from the pleadings: on May 27, 2018, Maison Kayser hired Plaintiff as a baker at their 1535 Third Avenue location in Manhattan, and he was assigned to work with Viveros, a head baker. Viveros was an "illegal Mexican" and most of Plaintiff's other colleagues were "Mexican and Spanish." (ECF No. 2 at 5-6.) During the first week, Viveros asked Plaintiff if he was of Puerto Rican or of Spanish descent, to which Plaintiff answered no. Viveros initially responded by stating that Plaintiff was "a liar in a jokingly manner," but as time passed, and Viveros realized that Plaintiff was not of Spanish descent, he and most of the kitchen staff "began to mistreat [Plaintiff] and refer to [him] as a zappato," which means shoe and is a disparaging term in Spanish. (Id. at 5.) Gabriela de la Vega - a general manager - and Julian Ramirez - a Mexican sous chef - also made disrespectful and racist comments about Plaintiff. Plaintiff attempted to defend himself by "talking back" and complaining to other managers, but he was told to ignore the racist comments and continue to work. (Id.) But Viveros continued to "torture[] [Plaintiff] daily by indirect and direct racist statements," and got his friends to "call [Plaintiff] names to cause discomfort and mental verbal abuse." (Id.) Soon after Plaintiff complained to the managers, Viveros "nast[ily] retaliate[ed]" against Plaintiff by throwing away lunch that was meant for the workers shortly before Plaintiff's break time so that Plaintiff could not eat. (Id.) Viveros also called Plaintiff a snitch.
As the months passed, Viveros heard false rumors "from the streets" that Plaintiff was "supposed to be gay." (Id.) Viveros began referring to Plaintiff "as the Maricon[,] which means a faggot in Spanish," and as "[p]avo[,] which means turkey, [and] also means gay in [S]panish." (Id.) Viveros and his friend continued to use anti-gay slurs whenever they referred to Plaintiff, and Viveros's close friend - Felix - "sexually harass[ed] [Plaintiff] to [his] face" while Viveros laughed with amusement. (Id.) Viveros also tried to get Plaintiff fired.
On February 2, 2019, after he was subjected to another anti-gay slur, on the advice of a supervisor, Plaintiff sent an email to Human Resources about the harassment. Anna Ledesma - a "Spanish woman" and a friend of Viveros in Human Resources - received the email and notified Viveros and General Manager Yann Ledoux. (Id. at 6.) The next day, Viveros met with Ledoux and Ledesma, and a decision was made to fire Plaintiff. But Bertin Boston, the head baker who was supervising Plaintiff at that time and "value[d] his work," saved Plaintiff's job. (Id.)
In addition to the above, on March 6, 2019, Jennifer Villemin, another employee of Maison Kayser, made a "whistling gesture" to Plaintiff, which indicated that he was a "homo-sexual on the low key." (ECF No. 4 at 5.) Gabriela de la Vega witnessed the situation and attempted to warn Villemin that Plaintiff would sue her, but Villemin did not stop the sexual harassment even though her actions were being recorded.
In his letter filed on April 29, 2019, Plaintiff further asserts that on April 25, 2019, Ledoux "made up" a disciplinary report in retaliation for Plaintiff's complaints about the harassment and the filing of this lawsuit. (ECF No. 10 at 1.)
Plaintiff asserts that he has "suffered mentally and was oppressed and belittled and mistreated as a human being by [his] co-workers at Maison Kayser" because of his race and perceived sexual orientation. (ECF No. 2 at 6.) He also claims that Viveros and most of the kitchen staff are illegal aliens from Mexico, but Maison Kayser tolerated their non-legal status and "racist and homophobic" actions towards Plaintiff "because of their cheap work." (Id.) He brings this action seeking injunctive relief and monetary damages.
DISCUSSION
A. Fourteenth Amendment
Because Plaintiff brings this action asserting that Defendants violated his rights under the Fourteenth Amendment to the Constitution, his constitutional claims are construed as being brought under 42 U.S.C. § 1983. Section 1983 provides redress for a deprivation of federally protected rights by persons acting under color of state law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978). But a claim for relief under § 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 are therefore not generally 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) ("[T]he United States Constitution regulates only the Government, not private parties.").
Here, it is clear that Defendants are private parties who do not work for any state or other government body. As the Constitution and § 1983 apply only to state actors, Plaintiff has not stated a claim against these defendants. Plaintiff's Fourteenth Amendment claims must be dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. Hate Crimes Act
Plaintiff also asserts claims under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 ("Hate Crimes Act"), 18 U.S.C. § 249. The Act, a criminal statute provides criminal penalties for intentionally causing bodily injury to another person when the injury was motivated by the actual or perceived religion, race, color, national origin, gender, sexual orientation, gender identity, or disability of the victim. See id. § 249(a)(2)(A). But Plaintiff cannot initiate prosecution against any defendants in this Court under the Hate Crimes Act because private citizens cannot prosecute criminal actions in federal court. See Lorenz v. Managing Director, St. Luke's Hosp., No. 09-CV-8898 (DAB) (JCF), 2010 WL 4922267, at *8 (S.D.N.Y. Nov. 5, 2010) (The Hate Crimes Act "is a criminal statute that cannot be enforced by a private party in a civil action . . . ."); see also Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981) (prisoners lack standing to seek the issuance of an arrest warrant); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."). Plaintiff also cannot direct prosecuting attorneys to initiate a criminal proceeding against Defendants because prosecutors possess discretionary authority to bring criminal actions, and they are "immune from control or interference by citizen or court." Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972).
Plaintiff attached to the complaint a Reuters newspaper article about the passing of the hate crime bill in 2009. (ECF No. 2 at 13-16.)
C. Title VII
Plaintiff's allegations that he was subjected to a hostile work because he was not of Spanish descent and was falsely perceived to be gay suggest a claim for relief, and the Court construes the complaint as asserting claims under Title VII of the Civil Rights Act and comparable claims under the New York State and City Human Rights Laws. See McLeod v. Jewish Guild for the Blind, 864 F. 3d 154, 158 (2d Cir. 2017) (holding that where a pro se plaintiff's factual allegations supported claims under "well-known" provisions of state law, district courts must construe the complaint as asserting claims under those laws, "regardless of [plaintiff's] failure to check the appropriate blank on a form complaint"). The Court therefore directs service on Defendants.
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a). The Second Circuit has recognized employment discrimination claims based on perceived sexual orientation as "a subset of sex discrimination" barred by Title VII. Zarda v. Altitude Express, Inc., 883 F.3d 100, 112, 131 (2d Cir. 2018) (en banc).
D. Service on Defendants
Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service. See Walker v. Schult, 717 F.3d. 119, 123 (2d Cir. 2013); 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process . . . in [IFP] cases."); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP). Rule 4(m) of the Federal Rules of Civil Procedure generally requires service of the summons and complaint to be completed within 90 days of the date the summons issues, and it is Plaintiff's responsibility to request, if necessary, an extension of time for service. Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). But see Murray v. Pataki, 278 F. App'x 50, 51-52 (2d Cir. 2010) ("As long as the [plaintiff proceeding IFP] provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes 'good cause' for an extension of time within the meaning of Rule 4(m).").
To allow Plaintiff to effect service on Defendants Maison Kayser, Abel Viveros, Gabriela de la Vega, Julian Ramirez, Ana Ledesma, and Jennifer Villemin through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals Service Process Receipt and Return form ("USM-285 form") for each of these defendants. The Clerk of Court is further instructed to issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon these defendants.
Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so.
E. Motion for Summary Judgment
On April 15, 2019, Plaintiff submitted to the Court a purported motion for summary judgment. (ECF No. 6) Given that Defendants have not yet been served with process, the Court denies the motion as premature and directs the Clerk of Court to terminate it without prejudice.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff, together with an information package. The Court consolidates Plaintiff's two complaints and letter (ECF Nos. 2, 4, and 10) and will treat them together as the operative complaint. The Court's docket should reflect the following defendants as parties to this action: Maison Kayser@USA.com, Abel Viveros, Gabriela (Gabby) de la Vega, Julian Ramirez, Ana Ledesma, and Jennifer Villemin. The Court docket should also reflect Maison Kayser@USA.com as the lead defendant, thereby changing the short caption of this case to Jamiel v. Maison Kayser@USA.com.
The Clerk of Court is further instructed to complete the USM-285 forms with the addresses for Maison Kayser, Abel Viveros, Gabriela de la Vega, Julian Ramirez, Ana Ledesma, and Jennifer Villemin and deliver all documents necessary to effect service to the U.S. Marshals Service.
The Court denies Plaintiff's motion for summary judgment (ECF No. 6) as premature and directs the Clerk of Court to terminate it without prejudice.
The Clerk of Court is further directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: MAY 22 2019
New York, New York
/s/_________
GEORGE B. DANIELS
United States District Judge
DEFENDANTS AND SERVICE ADDRESSES
1. Maison Kayser
373 Park Ave. South
New York, NY 10016
2. Abel Viveros
Head Baker
Maison Kayser
1535 Third Ave.
New York, NY 10028
3. Gabriela de la Vega
General Manager
Maison Kayser
1535 Third Ave.
New York, NY 10028
4. Julian Ramirez
Sous Chef
Maison Kayser
1535 Third Ave.
New York, NY 10028
5. Ana Ledesma
Human Resources
Maison Kayser
373 Park Ave. South
New York, NY 10016
6. Jennifer Villemin
Maison Kayser
1535 Third Ave.
New York, NY 10028