13-2958-cv
Byng v. Delta Recovery Services LLC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of June, two thousand fourteen.
PRESENT: DEBRA ANN LIVINGSTON,
CHRISTOPHER F. DRONEY,
Circuit Judges,
PAMELA K. CHEN,*
District Judge.
KEVIN V. BYNG,
Plaintiff-Appellant,
-v- No. 13-2958-cv
DELTA RECOVERY SERVICES LLC,
ROBERT WOOD, owner of Delta House,
Defendants-Appellees.
Kevin V. Byng, Collins, NY, pro se.
Michael Crowe, Cutler, Trainor & Cutler, LLP,
Malta, NY, for Defendants-Appellees.
*
The Honorable Pamela K. Chen, of the United States District Court for the Eastern District
of New York, sitting by designation.
1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Kevin Byng, proceeding pro se, appeals from the judgment of the
Northern District of New York (D’Agostino, J.), dismissing his action under 42 U.S.C. § 1983
against Defendants-Appellees Delta Recovery Services LLC (“Delta”) and Robert Wood. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
We review de novo a district court’s sua sponte dismissal of a complaint for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.
2001). 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 has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Pro
se complaints must be construed liberally and interpreted to raise the strongest arguments that they
suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation
marks omitted). Further, “[w]e review a district court’s denial of leave to amend for abuse of
discretion, unless the denial was based on an interpretation of law, such as futility, in which case we
review the legal conclusion de novo.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d
114, 119 (2d Cir. 2012).
“To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States . . . committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Thus, the defendant must “have
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exercised 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 omitted). “[A] private
entity does not become a state actor for purposes of § 1983 merely on the basis of the private entity’s
creation, funding, licensing, or regulation by the government. Rather, there must be such a close
nexus between the state and the challenged action that the state is responsible for the specific
conduct of which the plaintiff complains.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012)
(citation, brackets, emphasis, and internal quotation marks omitted); see also Cranley v. Nat’l Life
Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003) (“For the conduct of a private entity to be fairly
attributable to the state, there must be such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of the State itself.” (quoting Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)) (internal quotation marks
omitted)).
Our review of the record reveals no error in the district court’s order dismissing Byng’s
complaint based on its conclusion that the defendants were not state actors for purposes of 42 U.S.C.
§ 1983. Nor did the district court err in denying Byng leave to amend his complaint. While
“generally, leave to amend should be freely given, and a pro se litigant in particular should be
afforded every reasonable opportunity to demonstrate that he has a valid claim,” Nielsen v. Rabin,
746 F.3d 58, 62 (2d Cir. 2014), “leave to amend a complaint may be denied when amendment would
be futile,” Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006). Where, as here, “[t]he
problem with [plaintiff’s] causes of action is substantive,” amendment cannot save the complaint.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
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The fact that an entity like Delta is licensed by New York agencies and regulated by New
York law cannot alone transform it or its personnel into state actors. See Cooper v. U.S. Postal
Serv., 577 F.3d 479, 491-92 (2d Cir. 2009); see also Cranley, 318 F.3d at 112 (“[C]onduct by a
private entity is not fairly attributable to the state merely because the private entity is a business
subject to extensive state regulation or ‘affected with the public interest.’” (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 350, 353 (1974))). Nor do Byng’s other contentions, including
the claim that Delta is a party to state contracts, lead to the conclusion that Delta or Wood was
“controlled by” or “entwined with” the state, or that either “has been delegated a public function by
the state.” Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)
(per curiam) (brackets and internal quotation marks omitted). Thus, we affirm the dismissal of
Byng’s § 1983 claim, and we further conclude that the district court properly denied leave to
amend.1
We have considered all of Byng’s remaining arguments and find 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
1
We note that Byng did not brief his claim under the Americans with Disabilities Act on
appeal and, accordingly, has abandoned it. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93
(2d Cir. 1995) (deeming pro se litigant’s claims to be abandoned when not pursued on appeal).
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