Opinion
1:20-CV-1428 (LEK/TWD)
12-16-2021
ANN KHANNA, Plaintiff, v. DERIK ROY, et al., Defendants.
ANN KHANNA Plaintiff, pro se.
ANN KHANNA Plaintiff, pro se.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
Ann Khanna (“Plaintiff”), proceeding in forma pauperis, filed an amended complaint against Derik Roy and numerous other individuals, entities, and government actors (collectively “Defendants”). (Dkt. No. 31.) For the following reasons, the undersigned recommends dismissing the amended complaint for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
I. BACKGROUND
Ann Khanna (“Plaintiff”) initiated this action and moved to proceed in forma pauperis on November 20, 2020. (Dkts. No. 1, 2.) On February 1, 2021, the undersigned granted Plaintiff's motion to proceed in forma pauperis and recommended that the complaint be dismissed without prejudice but with leave to amend. (Dkt. No. 4.) On February 11, 2021, the undersigned extended Plaintiff's time to file any objections to the Report-Recommendation to February 26, 2021. (Dkt. No. 7.)
On April 8, 2021, Plaintiff notified the Court that she had received a copy of the Report-Recommendation, which she believed to be a forgery. (Dkt. No. 10.) The undersigned confirmed the authenticity of the Report-Recommendation, and again extended Plaintiff's time to file any objections to April 26, 2021. (Dkt. No. 11.) Plaintiff did not object.
On May 19, 2021, Senior United States District Judge Lawrence E. Kahn approved and adopted the undersigned's Report-Recommendation in its entirety. (Dkt. No. 12.) Plaintiff's complaint was accordingly dismissed without prejudice, but with leave to amend. Id.
In the following months, Plaintiff moved the Court for various forms of relief, including, among other things, a writ of prohibition and an order of protection involving various private and state actors. (Dkt. Nos. 22-23, 26, 29-30.) The undersigned denied these requests. (Dkt. Nos. 24, 27, 32.) Plaintiff updated her address three times, (Dkt. Nos. 13, 18), and asked for an extension to file an amended complaint four times. (Dkt. Nos. 13, 16, 19, 26.) The undersigned granted Plaintiff's extension requests, and Plaintiff filed an amended compliant on November 24, 2021. (Dkt. Nos. 14, 21, 27, 31.) The undersigned now conducts an initial review of Plaintiff's amended complaint under 28 U.S.C. § 1915(e)(2).
The most recent address Plaintiff provided the Court no longer appears to be current. (See Dkts. No. 28, 33.)
II. SUMMARY OF THE AMENDED COMPLAINT
Plaintiff asserts three causes of action through her amended complaint. (Dkt. No. 31 at 35, 48, 65.) Under the first cause of action, Plaintiff claims Defendants deprived her “of one or more rights secured by the Constitution and laws of the United States, in violation of 42 U.S.C. § 1983 et seq.” Id. at 35. Plaintiff claims these “deprivations occur[ed] under at least the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 13th, and 14th Amendments.” Id. Plaintiff claims Defendants engaged in an extensive international conspiracy with objectives that ranged from attempts to kill Plaintiff to “fabricating the existence of a virus called covid-19.” Id. at 35-47.
Citations to filings on the docket refer to the pagination CM/ECF automatically generates.
Under the second cause of action, Plaintiff claims “Defendants are co-conspirators, acting in furtherance of . . . a cross-border (U.S.-Canada) civil conspiracy over which this Court has supplemental jurisdiction.” Id. at 48. Recycling many of the claims offered in support of her first cause of action, Plaintiff claims Defendants engaged in an extensive international conspiracy to injure her state and federal rights. Id. at 48-64.
Under the third cause of action, Plaintiff claims Defendants conspired to act through a corrupt enterprise “in furtherance of and during the pendency of a cross-border (U.S.-Canada) civil conspiracy, in violation of 18 U.S.C. § 1962 et seq.” Id. at 65. Plaintiff claims Defendants engaged in a pattern of activity that damaged her “business and/or property . . . in a manner that has affected, and is affecting interstate commerce.” Id. According to Plaintiff, that pattern of activity includes Defendants' extensive international conspiracy to deprive her of her state and federal rights. Id. at 65-70.
III. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Legal Standards
Under 28 U.S.C. § 1915(e)(2)(B), this Court will dismiss a complaint filed in forma pauperis if it determines that the action “(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.” See Allen v. Stringer, No. 20-3953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021).
Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks, emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157 n.4 (2d Cir. 2020).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Iqbal, 556 U.S. 662, 678. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. 544, 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
B. The Amended Complaint Fails to State a Claim
Through her amended complaint, Plaintiff fails to state a claim for relief under 42 U.S.C. § 1983 and 18 U.S.C. § 1962. The undersigned accordingly recommends dismissing Plaintiff's first and third causes of action for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). The undersigned further recommends dismissing Plaintiff's second cause of action for lack of subject matter jurisdiction. See 28 U.S.C. § 1367(c)(3).
First, Plaintiff failed to plausibly allege that Defendants violated her federal rights while acting under color of state law. See 42 U.S.C. § 1983. “To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). Plaintiff has not provided “a short and plain statement of the claim showing that [she] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Instead, Plaintiff has provided a long and unclear list of allegations. (See Dkt. No. 31 at 35-47.) Plaintiff does not clearly allege which of her federal rights were violated. See Id. Nor does she allege who specifically violated her federal rights. See Id. Plaintiff has accordingly failed to plausibly allege that one of the Defendants violated one of her federal rights. See Perez v. Colon, No. 9:19-CV-0722 (BKS), 2019 WL 5102612, at *6 (N.D.N.Y. Oct. 11, 2019) (“In the absence of factual allegations sufficient to plausibly suggest that the defendant was personally involved in conduct that violate Plaintiff's constitutional rights, the complaint fails to state a cognizable claim against him/her.”); Hamilton v. New York State Dep't of Corr. & Cmty. Supervision, No. 9:18-CV-1312 (MAD), 2019 WL 2352981, at *7 (N.D.N.Y. June 4, 2019) (same). Plaintiff has also failed to plausibly allege that one, much less all, of the Defendants acted under color of state law while violating her rights. See McGill v. Buzzelli, 828 Fed.Appx. 76, 77 (2d Cir. 2020) (“McGill failed to state a § 1983 claim because he did not allege that any of the defendants acted under color of state law.”).
Second, Plaintiff failed to plausibly allege a cause of action under 18 U.S.C. § 1962. Among other deficiencies, Plaintiff has failed to plausibly allege that Defendants participated in a pattern of racketeering activity through a corrupt enterprise. See 18 U.S.C. § 1962; see also Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983). To state a claim for relief under 18 U.S.C. § 1962, Plaintiff “has two pleading burdens.” Moss, 719 F.2d at 17. “First, [s]he must allege . . . the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more acts (3) constituting a pattern (4) of racketeering activity (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an enterprise (7) the activities of which affect interstate or foreign commerce.” Id. Second, Plaintiff must allege that she was “injured in [her] business or property by reason of a violation of section 1962.” Id. (citing 18 U.S.C. § 1964(c)).
See, e.g., N.D.N.Y. L.R. 9.2 (“In any action in which a party asserts a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., the party asserting such a claim shall file a RICO statement within thirty (30) days of the filing of the pleading containing such claim.”).
Plaintiff's threadbare recitals of the statutory language followed by conclusory allegations concerning Defendants' wide-ranging conspiracy do not give rise to a reasonable inference that Defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. For example, Plaintiff has failed to plausibly allege that Defendants engaged in a “pattern of racketeering activity.” See 18 U.S.C. §§ 1961(1), (5); see also Moss, 719 F.2d at 17. This pleading deficiency warrants dismissal for failure to state a claim. See Sonnick v. Budlong, No. 5:20-CV-0410 (TJM/ML), 2020 WL 2999109, at *9 (N.D.N.Y. June 4, 2020), report and recommendation adopted, 2020 WL 4345004 (N.D.N.Y. July 29, 2020); Brewer v. Brewer, No. 3:18-CV-0399 (GLS/DEP), 2018 WL 4938694, at *3 (N.D.N.Y. Sept. 20, 2018), report and recommendation adopted, 2018 WL 4935757 (N.D.N.Y. Oct. 11, 2018). Plaintiff has also failed to plausibly allege that some or all of Defendants participated in an “enterprise.” See 18 U.S.C. § 1961(4); see also Moss, 719 F.2d at 21-22. This too warrants dismissal for failure to state a claim. See Israel v. City of Syracuse, No. 5:21-CV-0915 (DNH/ML), 2021 WL 4777256, at *6 (N.D.N.Y. Sept. 16, 2021), report and recommendation adopted, 2021 WL 4773232 (N.D.N.Y. Oct. 13, 2021).
IV. CONCLUSION
For the foregoing reasons, the undersigned recommends dismissing Plaintiff's amended complaint in its entirety. Typically, a court should not dismiss a pro se litigant's complaint without granting leave to amend “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991). In this case, however, because Plaintiff has already had an opportunity to amend, and because additional amendment is unlikely to cure the substantive hurdles in Plaintiff's causes of action, the undersigned recommends dismissing this action without further leave to amend. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's amended complaint (Dkt. No. 31) be DISMISSED WITHOUT LEAVE TO AMEND, and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Plaintiff must immediately notify the Court of any change of address. N.D.N.Y. LR. 10(c)(2). Failure to follow this directive may result in dismissal of the action. Fed.R.Civ.P. 41(b); N.D.N.Y. LR. 41.2(b).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
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