ORDER TO AMEND Plaintiff, appearing pro se, brings this action under the Court’s federal question jurisdiction, asserting claims of sexual harassment and “physical/mental abuse.” (ECF No. 2 1.) By order dated May 3, 2019, the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.STANDARD OF REVIEWThe 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).BACKGROUNDNamed as Defendants in this complaint are three John Doe staff members of the Oasis shelter in New Rochelle and the New Rochelle Police Department. The complaint contains the following allegations. Plaintiff, who now resides in Mount Vernon, entered the Oasis shelter in December 2018. Oasis employees abused their authority and played “favorites.” The night manager, Chris, banged on the door while Plaintiff was using the bathroom and yelled various threats at her and “disrespected, yelled at, and belittled” her. ECF No. 2 at 13.) According to Plaintiff, Chris “scares” and “threatens” her, even though he “knows that [her] husband had abused [her], forcing [her] to “flee for safety.”An employee, Tanya, told Plaintiff that another employee, Ronald, was looking for Plaintiff. Ronald “came onto” Plaintiff and “grabbed” her vagina, and Plaintiff was told that if she called the police she would “forfeit[]” her bed. Ronald approached Plaintiff while she was in her car and offered her marijuana. Attached to the pleading are copies of photographs, but it is unclear what they purport to show or why Plaintiff attaches them. Plaintiff seeks money damages.DISCUSSIONThe Court liberally construes the complaint as alleging constitutional claims under 42 U.S.C. §1983. To state a claim under §1983, a plaintiff must allege both that: (1) a person acting under the color of state law, or a “state actor”; (2) violated a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48-49 (1988); 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.”).A. Oasis Shelter EmployeesA private entity’s activity can be attributed to the government 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 willfully participates in joint activity with the state or its functions 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). Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012). The fundamental question under each test is whether the private entity’s challenged actions are “fairly attributable” to the government. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).Providing housing is not a public function because it is not the exclusive province of the state. See, e.g., Okon v. Appia, No. 06-CV-6810 (CPS), 2008 WL 2245431, at *14 (E.D.N.Y. May 29, 2008); George v. Pathways to Housing, Inc., No. 10-CV-9505 (ER), 2012 WL 2512964, 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.’”). Moreover, neither government funding nor government regulation suffices for a private entity to be deemed a state actor. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (holding that government must command or encourage the alleged wrongdoing for there to be state action based on licensing or regulation); Kohn, 457 U.S. at 838. The crucial issue is the relationship between the government and the challenged action taken by the private actor, not the relationship between the government and the private entity. George, 2012 WL 2512964, at *4, n.5.In providing housing to Plaintiff, the Oasis shelter and its employees were not engaged in state action or otherwise acting under color of state law. As reprehensible as the described conduct was, Plaintiff cannot state claims against the Oasis employees under §1983.B. New Rochelle Police DepartmentUnder New York law, city agencies or departments do not have the capacity to be sued in their own names. See Fed. R. Civ. P. 17(b); Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued.”); see also N.Y. Gen. Mun. Law §2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). Plaintiff’s claims against the New Rochelle Police Department must be dismissed. 28 U.S.C. §1915 (e)(2)(B)(ii).1LEAVE TO AMENDThe Court grants Plaintiff leave to file an amended complaint to address the deficiencies in her original pleading. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must:a) give the names and titles of all relevant persons;b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do;c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;d) give the location where each relevant event occurred;e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; andf) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated her federally protected rights; what facts show that her federally protected rights were violated; when such violation occurred; where such violation 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 wishes to maintain must be included in the amended complaint.CONCLUSIONThe Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 19-CV-3979 (CM). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.The Clerk of Court is 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 16, 2019New York, New York
