Wright v. Waterside Plaza, L.L.C. , 354 F. App'x 594 ( 2009 )

08-2404-cv
Wright v. Waterside Plaza LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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IN C LU D E R EFER EN C E TO TH AT D A TA BA SE A N D TH E D OC KET N U M BE R O F T H E C A SE IN W H IC H TH E O RD ER W A S
ENTERED .
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 3rd day of
December, two thousand and nine.
PRESENT:
WILFRED FEINBERG,
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________________
Raymond Wright,
Plaintiff-Appellant,
v. No. 08-2404-cv
Waterside Plaza, L.L.C. (“WPLLC”), Waterside Tenants
Association (“WTA”), David Rosenberg,
Defendants-Appellees.
______________________________________________
For Appellant: RAYMOND WRIGHT, pro se, New
York, N.Y.
For Appellees: MAGDA L. CRUZ, Belkin, Burden,
Wenig & Goldman, New York, N.Y.
MARGRET M. MCBURNEY, Marin
Goodman, LLP, New York, N.Y,
DAVID ROSENBERG, Marcus Rosenberg
& Diamond LLP, New York, N.Y.
Appeal from the United States District Court for the Southern District of New York
(Chin, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Raymond Wright, pro se, appeals the district court's sua sponte dismissal of his
complaint for failure to state a cause of action. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review the district court's sua sponte dismissal of a complaint de novo, “construing
the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002). A complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). Although
all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Ashcroft v. Iqbal, 550 U.S. 544, 570 (2009). A claim will have “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.” Id. Here, the district court
properly dismissed Wright's complaint for failure to state a claim.
Wright’s complaint alleged claims under: (1) various federal criminal laws under Title 18
of the United States Code; (2) provisions of the Racketeer Influenced and Corrupt Organizations
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Act (“RICO”), 18 U.S.C. §§ 1961, et seq., including civil RICO provisions; and (3) the First
Amendment. First, Wright's claims against Rosenberg were properly dismissed because, as the
district court concluded, Rosenberg’s alleged activities in connection with WTA and WPLLC
amount to no more than providing counsel to his clients and being copied on various emails
written by WTA members. Second, Wright’s claims under Title 18, except the civil RICO
claims, failed as a matter of law because no private remedy exists for the criminal violations
Wright alleged. See Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (noting that the
Supreme Court “has rarely implied a private right of action under a criminal statute”). Third,
Wright’s First Amendment claim failed to state a cause of action because he had failed to allege
any factual evidence indicating a nexus between the conduct of Defendants—all of whom are
private actors—and state action. See Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir.
2009) (holding that a constitutional claim against non-government entities only lies where “there
is a sufficiently close nexus between the State and the challenged action of the . . . entity so that
the action of the latter may be fairly treated as that of the State itself”) (internal quotation marks
omitted). Moreover, the mere provision of federal subsidies to the Defendants does not
transform their otherwise private conduct into state action. See Rendell-Baker v. Kohn, 457 U.S.
830, 840 (1982) (cited in Horvath v. Westport Library Ass’n, 362 F.3d 147, 152 (2d Cir. 2004)).
Finally, the district court correctly dismissed Wright’s civil RICO claims because he had failed to
plead sufficient factual allegations to demonstrate that the Defendants’ RICO violations caused
an injury to his business or property. See Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir.
2006) (“In order to bring suit under § 1964(c), a plaintiff must plead (1) the defendant’s violation
of [18 U.S.C.] § 1962, (2) an injury to the plaintiff’s business or property, and (3) causation of
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the injury by the defendant’s violation.”) (citations and quotations omitted; brackets in original).
We have considered all of Wright's remaining claims of error and determined them to be
without merit. For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:________________________
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