ORDER OF DISMISSAL Plaintiff Yessuh Suhyes Hussey, who is currently held in the Eric M. Taylor Center on Rikers Island, filed this pro se action under 42 U.S.C. §1983, and seeks damages.1 He sues “‘John Doe’ Licenses Plate #HLD 8446 of the Owners Mazda, Vehicle,” and alleges that the defendant is either an actively employed or retired correction officer. By order dated April 28, 2023, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees.2 For the reasons set forth below, the Court dismisses this action, but grants Plaintiff 60 days’ leave to file an amended complaint. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §1915A(a). The Court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon 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), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if 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 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (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. Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Id. 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. Id. (citing Twombly, 550 U.S. at 555). 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. Id. at 679. BACKGROUND Plaintiff alleges the following: On August 29, 2020, in front of the Red Lion Restaurant in New York, New York, the defendant had been drinking and was under the influence of alcohol. The defendant then “randomly attacked” Plaintiff, who was “a passerby in front of the Red Lion Restaurant.” (ECF 1, at 4.) The defendant’s stated reason for attacking Plaintiff was because of his belief that Plaintiff was “‘a moron.’” (Id.) The defendant punched Plaintiff in the face “for no logical or apparent reason.” (Id.) As a result of being punched, Plaintiff fell “flat to the ground.” (Id.) Plaintiff “looked at [the defendant's identification] after [Plaintiff] got up from the ground…and noted that [the defendant] is a correction officer who[se] card was expired [and who] might also be retired.”3 (Id.) DISCUSSION The Court must dismiss Plaintiff’s claims under 42 U.S.C. §1983. To state a claim under that statute, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” See West v. Atkins, 487 U.S. 42, 48-49 (1988). “The traditional definition of acting under color of state law requires that the defendant…exercise[] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49 (internal quotation marks and citation omitted). “Mere employment by a state or municipality[,] [however,] does not automatically mean that [an official's] actions are taken under the color of state law.” Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996). “[A] defendant in a §1983 suit acts under color of state law when he abuses the position given to him by the State.” West, 487 U.S. at 49-50. “It is ‘axiomatic[,] [however,]…that acts of officers in the ambit of their personal pursuits are plainly excluded’” from the definition of state action for Section 1983 purposes. Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997) (quoting Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994)). “[T]here is no bright line test for distinguishing personal pursuits from activities taken under color of law.” Pitchell, 13 F.3d at 548 (internal quotation marks omitted). Thus, “[m]ore is required than a simple determination as to whether an officer was on or off duty when the challenged incident occurred.…[So] courts look to the nature of the officer’s act, not simply his duty status.” Id. “In determining whether an officer was acting under color of law, [t]he court is to look at the totality of the circumstances surrounding the officer’s acts…and the relationship of that conduct to the officer’s official duties.” Feaster v. City of New York, No. 18-CV-5021, 2020 WL 2485984, at *4 (S.D.N.Y. Mar. 2, 2020) (internal quotation marks and citation omitted, alteration in original), aff’d, No. 20-1122, 2021 WL 4597766 (2d Cir. Oct. 7, 2021) (summary order). Moreover, a retired officer is generally not considered to be a state actor for the purpose of Section 1983 liability. See, e.g., Llanes v. New York, No. 18-CV-3537, 2019 WL 4889258, at *6 (E.D.N.Y. Sept. 30, 2019) (retired police officer not a state actor with respect to incidents that occurred when he was retired); Lore v. City of Syracuse, 583 F. Supp. 2d 345, 385 (N.D.N.Y. 2008) (same). Plaintiff does not provide facts sufficient to show that the defendant, whom Plaintiff alleges is either an actively employed or retired correction officer, was acting under color of state law when he allegedly attacked Plaintiff. If the defendant was retired on the date of the alleged incident, then it is clear that he was not acting under color of state law when he attacked Plaintiff and, therefore, Plaintiff does not state a claim under Section 1983. To the extent that Plaintiff asserts that the defendant was an actively employed correction officer on the date of the alleged incident, he still does not allege facts sufficient to show that the defendant was acting under color of state law. He merely alleges that, while the defendant was under the influence of alcohol and in front of a restaurant in New York, New York (as opposed to in or around a jail or prison), the defendant punched Plaintiff because of the defendant’s stated belief that Plaintiff was “‘a moron.’” Those allegations, by themselves, do not show that the defendant was acting under color of state law when he attacked Plaintiff. Accordingly, the Court dismisses Plaintiff’s claims under Section 1983 for failure to state a claim on which relief may be granted. See 28 U.S.C. §1915(e)(2)(ii). In light of Plaintiff’s pro se status, however, the Court grants Plaintiff 60 days’ leave to file an amended complaint in which Plaintiff alleges facts showing how the defendant acted under color of state law when he allegedly attacked Plaintiff. CONCLUSION The Court dismisses this action for failure to state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2)(B)(ii). The Court, however, grants Plaintiff 60 days’ leave to file an amended complaint, as specified above. If Plaintiff fails to file an amended complaint within the time allowed, or fails to show cause to excuse such failure, the Court will direct the Clerk of Court to enter judgment dismissing this action for the reasons set forth in this order. 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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: July 5, 2023
