UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY VINCENT MOTO, Plaintiff, 23-CV-4343 (LTS) -against- ORDER OF DISMISSAL BOWERY MISSION, Defendant. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is appearing pro se, brings this action invoking the Court’s federal question jurisdiction. By order dated May 25, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (IFP), that is, without prepayment of fees. STANDARD OF REVIEW The Court must dismiss an in forma pauperis 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.

(e)(2)(B); see Livingston v. Adirondack Beverage Co.,

(2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. 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,

(2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons,

(2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases,

(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. BACKGROUND Plaintiff Anthony Vincent Noto alleges that his claims arose at the Bowery Mission in Manhattan, between 2014 and 2023. (ECF 2 at 5.) He has been without a home since 2014, and

periodically has stayed at the Bowery Mission. (Id.) He alleges that, during his stays at the Bowery Mission: [he] ha[s] encountered the staff living off [his] every word. [They are] following and orchestrating [his] movements throughout the church. [He is] grateful for the services offered but no resolution or conversation appeared to [him] directly. [He is] aware that all volunteer staff all working staff [are] aware of [his] situation. Obstruction is occurring and has been for a long time. [He] told them about the corruption that had been present due to their actions. They refuse to acknowledge and speak to [him] directly instead would rather speak to their guests and allow the obstruction to further develop. (Id.)1 Plaintiff does not describe any injuries that he has suffered. He sues Bowery Mission, seeking $5 million in damages. DISCUSSION A. Short and plain statement of the claim Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(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 misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true.

1 All grammar, spelling, and punctuation in quoted material is from the original, unless otherwise noted. Ashcroft v. Iqbal,

(2009). 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. Twombly,

. 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.

Plaintiff’s complaint fails to comply with Rule 8. He does not plead enough factual detail to allow the Court or the defendant to understand what misconduct is alleged to have occurred or why defendant is liable. Plaintiff refers to “corruption” and “obstruction” but does not include facts about what happened that allegedly violated his rights. Plaintiff’s allegations thus fail to state a claim on which relief can be granted and must be dismissed.

(e)(2)(B)(ii). B. State action Plaintiff invokes the Court’s federal question jurisdiction, and the Court therefore construes his complaint as asserting claims against Defendant Bowery Mission arising under

. A claim for relief under Section 1983 must allege facts showing that each

defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.”

. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America,

(2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,

(2001)); see also Ciambriello v. Cnty. of Nassau,

(2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). The activity of a private entity or its employees can be attributed to the state in three situations: (1) the entity acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) the entity either willfully participates in joint activity with the state or performs functions that are entwined with state policies (the “joint action” or “close nexus” test); or (3) the state has delegated a public function to the entity (the “public function” test). See Fabrikant v. French,

(2d Cir. 2012). The fundamental question under each test is whether the challenged actions of the private entity are “fairly attributable” to the state.

(citing Rendell-Baker v. Kohn,

(1982)). In analyzing whether a private entity acts under color of state law for purposes of Section 1983, the district court begins “by identifying the specific conduct of which the plaintiff complains,” rather than the general characteristics of the entity.

Here, Plaintiff sues Bowery Mission, a private entity providing temporary shelter to those without housing. Providing housing is not the exclusive province of the state, and district courts have therefore held that private entities doing so do not qualify as state actors under the public function test. See, e.g., George v. Pathways to Housing, Inc., No. 10-CV-9505 (ER),

, at *4 (S.D.N.Y. June 29, 2012) (“It is well established that the provision of low-cost supportive housing is not a ‘public function.’”); see also Rendell-Baker,

(holding

that the fact that an entity receives public funds does not turn private action into state action). Because the Bowery Mission, in providing temporary housing for Plaintiff, does not qualify as a state actor, Plaintiff’s allegations fail to state a claim under Section 1983. Plaintiff’s Section 1983 claim against the Bowery Mission must therefore be dismissed for failure to state a claim on which relief may be granted.

(e)(2)(B)(ii). C. Leave to amend District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,

, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo,

(2d Cir. 1988). It appears unlikely that the defects in Plaintiff’s complaint can be cured with an amendment. Because he proceeds pro se, the Court dismisses this action with leave to file an amended complaint, within 30 days, if Plaintiff wishes to do so. Plaintiff is granted leave to amend his complaint to provide factual detail about the basis for his claims and to show that he states a claim upon which relief may be granted under Section

1983 or other federal statute. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated his federally protected rights; how, when, and where such violations occurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. CONCLUSION Plaintiff’s complaint, filed in forma pauperis under

(a)(1), is dismissed pursuant to

(e)(2)(B)(ii). The Court will hold this matter open on the docket for 30 days without entering judgment to allow Plaintiff an opportunity to file an amended complaint.

An amended complaint form is attached to this order. Plaintiff’s amended complaint, if he chooses to file one, must be submitted to the Pro Se Intake Unit and must bear the docket number 23-CV-4343 (LTS). If Plaintiff fails to file an amended complaint within the time allowed, the Court will enter judgment dismissing this action for failure to state a claim on which relief can be granted.

(e)(2)(B)(ii). The Court certifies under

(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States,

(1962). SO ORDERED. Dated: June 12, 2023 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews

against AMENDED

□ COMPLAINT ee Do you want a jury trial? LlYes ULINo

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under

, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under

, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 4: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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