Drummond v. CVS Pharmacy ( 2024 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------x STANLEY OTIS DRUMMOND, Plaintiff, MEMORANDUM AND ORDER 23-CV-05741 (LDH) -against- CVS PHARMACY, Defendant. -----------------------------------------------------------x LaSHANN DeARCY HALL, United States District Judge. Stanley Otis Drummond (“Plaintiff”), proceeding pro se, brings this action against CVS Pharmacy (“Defendant”), alleging violations of his constitutional rights. The Court grants Plaintiff’s request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) for the limited purpose of this memorandum and order. For the reasons discussed below, however, the complaint is dismissed without prejudice for failure to state a claim upon which relief may be granted. I. BACKGROUND This action arises from Plaintiff’s visit to a CVS Pharmacy in Brooklyn on July 8, 2023. (Compl. at 5, ECF No. 1.) According to the complaint, when Plaintiff entered the store, a manager told a security guard to follow him to ensure that Plaintiff did not steal anything. (Id.) Plaintiff was escorted to the pharmacy area and then escorted to the exit. (Id.) Plaintiff alleges that his civil rights were violated and he was “mortified and humiliated.” (Id at 2, 5.) Plaintiff does not state the relief he seeks. II. STANDARD OF REVIEW A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. In reviewing pro se complaints, the Court must hold the plaintiff’s pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nonetheless, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied 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.” III. DISCUSSION To state a claim under § 1983, a plaintiff must allege two essential elements: “(1) that the defendants deprived him of a right ‘secured by the Constitution or laws of the United States’; and (2) that they did so ‘under color of state law.’” Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)). That is, to maintain a Section 1983 claim for violation of a constitutional right, a plaintiff is “required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003); see also United States v. International Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir.1991) (“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.’”). Here, Plaintiff alleges a violation of his “civil rights,” which the Court construes as bringing a 1983 claim for violation of his constitutional rights. (Compl. at 2.) According to the complaint, Plaintiff suffered humiliation based on Defendant’s security guard escorting Plaintiff around the store. (Id. at 5.) Yet, Defendant and its employees are private parties that cannot be sued under Section 1983. See, e.g., Madison v. CVS, No. 22-CV-4221, 2022 WL 17793254, at *3 (S.D.N.Y. Dec. 19, 2022) (dismissing Section 1983 claims against CVS and CVS employees because both are private parties); Ong v. TOWPD, No. 18-CV-4775, 2018 WL 11465756, at *3 (S.D.N.Y. June 29, 2018) (same). That is, regardless how humiliating the experience might have been for Plaintiff, he has failed to allege “state action” required to state a claim under Section 1983. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (observing “the under-color-of- state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful”). Plaintiff’s claims against Defendant are therefore dismissed for failure to state a claim upon which relief may be granted. IV. CONCLUSION For the foregoing reasons, Plaintiff’s complaint is DISMISSED. Further, the Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith; thus in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is respectfully directed to enter judgment dismissing the action and mail a copy of this Memorandum and Order and judgment to the pro se Plaintiff. SO ORDERED. _______s_/_ L__D_H_________________ Dated: Brooklyn, New York LaSHANN DeARCY HALL January 17, 2024 United States District Judge