McCoy v. US Department of Health and Human Services et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Leila Cruz McCoy
v. 	Case No. 22-cv-214-SM
U.S. Department of Health and
Human Services, U.S. Department
of Housing and Urban Development,
U.S. Department of Agriculture
REPORT AND RECOMMENDATION
Before the court is plaintiff Leila Cruz McCoy’s complaint
(Doc. No. 1), which she filed in forma pauperis, naming various
agencies and agency employees as defendants.1 	The matter is
before this court for preliminary review, pursuant to 28 U.S.C.
§ 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
The court may dismiss claims asserted by a plaintiff who is
proceeding in forma pauperis, if: the court lacks subject matter
1 The complaint names three federal agencies as defendants
(U.S. Department of Health and Human Services (“HHS”), U.S.
Department of Housing and Urban Development (“HUD”), and U.S.
Department of Agriculture (“USDA”)). 	Within the complaint, Ms.
McCoy appears to consider the “CA Dept of Social Services” and
the “CO Dept of Social Services” to be parties, although she
characterizes them as HHS field offices. 	And she lists the
following individuals at the end of the complaint as the
“persons involved”: “HUD: Marcia Fudge, Charlotte Boyd, Deborah
Manigault, Logan Brown, Lacy Byrne”; “USDA Civil Rights Office
Denver/San Francisco, Tom Vilsack”; and “[HHS]: Andrea Olivery.”
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jurisdiction, a defendant is immune from the relief sought, the
complaint fails to state a claim, or the action is frivolous or
malicious. 	See 28 U.S.C. § 1915(e)(2). 	To determine whether to
dismiss for failure to state a claim, the court strips away
legal conclusions, takes as true the factual content in the
complaint, as a whole, and the inferences reasonably drawn from
those facts, and considers whether the plaintiff has stated a
claim that is plausible on its face. 	Hernandez-Cuevas v.
Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). 	In determining whether a pro
se complaint states a claim, the court must construe the
complaint liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam).
Background
Ms. McCoy, who reports a mailing address in Missouri and a
residential address in New Hampshire, receives Supplemental
Security Income (“SSI”) because she is blind. 	In the complaint
she asserts that her disabilities also include congestive heart
failure, diabetes, and a mobility impairment. 	She has filed as
an exhibit to her complaint a June 13, 2022 letter from the
Social Security Administration (posted to an address in
California), indicating that her SSI benefit had been reduced
because of an overpayment.
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Ms. McCoy asserts that at some unspecified time between
October 31, 2015 and June 14, 2022, defendants discriminated
against her “on the basis of race, religion, national origin,
disability, and family status,” and that they violated her
federal rights, and the rights of her children, with respect to
the “administration of federal food, housing, cash and medical
assistance programs.” 	She asserts that defendants have also
compromised her safety and the safety of her children by
disclosing their “birth identities,” which she asserts had been
sealed. 	And she asserts that the formats of defendants’
“websites, forms, publications, and communications” do not allow
the “blind, disabled and elderly” to understand what they say.
Ms. McCoy further asserts that defendants subjected her to
abuse, harassment, and retaliatory acts when she requested
accommodations and assistance for her disabilities and for her
children’s disabilities. 	She asserts that when she “or her
relatives” filed civil rights and disability rights complaints
against the agencies, they “weaponized the local courts and
police” by subjecting her to “false arrest” and “malicious
prosecution” and by “remov[ing] custody of the children.” 	In
particular, she asserts that on two occasions when she filed
“ADA reconsideration appeals, fair housing settlement complaint
and or [sic] requested state hearings to oppose adverse agency
actions against [her] and her children,” unspecified defendants
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“had [her] children removed from her care . . . or had her
arrested . . . and charged her with crimes defendants knew it
was physically impossible for [her] to commit given her
disabilities and dependence on others such as her case workers
to help her fill out forms as the defendants have no accessible
forms, applications nor publications for the sensory impaired or
handicapped who need to use their voice to fill out forms.”
Ms. McCoy states that she “repeatedly asked Defendants and
their local offices to work with blindness professionals, screen
reader/adaptive software manufacturers, assistive technology
programs and to use US Postal Service free matter for the
blind,” but “Defendants refused to use these resources to
resolve the ADA and civil rights complaints.” 	She further
alleges that such services are provided to noncitizens seeking
assistance but were denied to her, because of her U.S.
citizenship. 	She also claims that she was denied due process
and necessary accommodations in agency administrative
proceedings.
Ms. McCoy lists the following statutes as providing causes
of action for her claims: the federal constitution; 42 U.S.C.
§ 1983; the Violence against Women Act (“VAWA”); the Federal
Fair Housing Act (“FHA”); the Americans with Disabilities Act
(“ADA”); and the Rehabilitation Act. 	She has named three
federal agencies as defendants (HHS, HUD, and the USDA), and, in
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the complaint narrative, she has listed two state agencies or
HHS field offices, as well as seven agency employees, as
“persons involved.” 	She seeks damages.
Discussion
I. 	Children’s Claims
Ms. McCoy asserts that defendants have violated the federal
rights of her children, as well as her own civil rights. 	In
general, non-attorney parents cannot litigate their children’s
claims in federal court in a representative capacity, without
having counsel appear to represent them. 	See Katz v. McVeigh,
2013 DNH 37, 931 F. Supp. 2d 311, 333 (D.N.H. 2013). 	Ms. McCoy
has not pleaded any facts suggesting that she is an attorney.
Accordingly, the district judge should dismiss, without
prejudice, the claims she has asserted on behalf of her
children.
II. 	Constitutional Claims
Ms. McCoy names three federal agencies as defendants,
asserting that they have violated her rights to equal protection
and due process, and she seeks an award of damages. 	A
plaintiff, however, “cannot bring a constitutional claim
for damages against a federal agency.” 	Every v. VA, No. 15-cv-
177-LM, 2016 DNH 006, 2016 U.S. Dist. LEXIS 2414, at *4 n.3,
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2016 WL 107947, at *1 n.3 (D.N.H. Jan. 8, 2016) (citing FDIC v.
Meyer, 510 U.S. 471, 484-86 (1994)). 	Accordingly, the district
judge should dismiss Ms. McCoy’s federal constitutional claims
for damages asserted against HUD, HHS, and the USDA.
III. Eleventh Amendment
Ms. McCoy lists the California and Colorado Departments of
Health and Human Services as parties. 	Although she
characterizes them as HHS field offices, if they are state
agencies, the Eleventh Amendment would shield them from
liability here. 	See Town of Barnstable v. O’Connor, 786 F.3d
130, 138 (1st Cir. 2015). 	Accordingly, to the extent that state
agencies are named as defendants, the district judge should
dismiss Ms. McCoy’s claims against them as barred by the
Eleventh Amendment.
IV. 	VAWA
Ms. McCoy cites VAWA as providing her with a statutory
cause of action. 	VAWA does not create a private right of
action. 	Gibbs v. N.H. Dep’t of Corr. Comm’r, 2021 DNH 133, 561
F. Supp. 3d 139, 150 (D.N.H. 2021). 	Accordingly, the district
judge should dismiss all of Ms. McCoy’s claims asserted under
VAWA.
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V. 	ADA
Ms. McCoy cites the ADA as providing a cause of action for
her claims. 	The federal government, its agencies, and
employees, however, are excluded from liability under the ADA.
See Feliciano-Hill v. Principi, 439 F.3d 18, 22 n.1 (1st Cir.
2006). 	Accordingly, the district judge should dismiss all of
Ms. McCoy’s ADA claims asserted against the federal defendants.
VI. 	Section 1983
Ms. McCoy cites 42 U.S.C. § 1983 as providing a cause of
action for her claims. 	That statute provides a cause of action
to a person whose federal rights have been violated by
defendants acting under color of state law. 	Except for any
state agencies or offices identified in the complaint narrative
(which would otherwise be shielded from liability by the
Eleventh Amendment), the remaining defendants appear to be
federal agencies or federal employees. 	Nothing alleged in the
complaint suggests that any of the federal defendants have taken
any action violating her rights under color of state law. 	The
district judge should dismiss all § 1983 claims against the
federal agencies and their employees.
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VII. Rule 8(a)(2) of the Federal Rules of Civil Procedure
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” 	Fed. R. Civ. P. 8(a)(2). 	“A district
court has the power to dismiss a complaint when a plaintiff
fails to comply with the Federal Rules of Civil Procedure,
including Rule 8(a)(2)’s ‘short and plain statement’
requirement.” 	Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993).
Stripped of legal conclusions, the Complaint asserts that
at some point within a seven-year period, Ms. McCoy asked the
USDA, HHS, or HUD for an accommodation for her blindness, with
respect to the agencies’ administrative proceedings, websites,
forms, or other communications, and her request was denied.
And, more than once, she lost the custody of her children, or
was arrested and prosecuted for crimes she says she did not
commit, in retaliation for her actions, or her relatives’
actions, in seeking a hearing, reconsideration, or an appeal
with respect to a denial of federal housing assistance, food or
cash assistance, or medical assistance. 	She provides no
specific names, dates, locations, or conduct attributable to any
agency or individual listed in the complaint, for the events and
circumstances which she says underlie her claims.
The lack of specificity in her complaint as to who did what
to her, when, and where, renders her claims susceptible of
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dismissal because of her non-compliance with Rule 8(a)(2). 	Her
complaint does not provide sufficient information regarding
those issues to allow defendants to respond. 	See Educadores
Puertorriqueños en Accion v. Hernández, 367 F.3d 61, 68 (1st
Cir. 2004) (“in a civil rights action as in any other action
subject to notice pleading standards, the complaint should at
least set forth minimal facts as to who did what to whom, when,
where, and why -- although why . . . mean[ing] the actor’s state
of mind, can be averred generally”).2
2In the last two years, Ms. McCoy has filed federal cases in
Colorado and California against an overlapping set of
defendants, resembling her case here. 	See, e.g., McCoy v.
Newsom, No. 3:20-cv-1570-TWR-BGS (S.D. Cal., filed Aug. 14,
2020) (“McCoy I”); McCoy v. Colo. Dep’t of Human Servs., No.
1:20-cv-2290-LTB-GPG (D. Colo., filed Nov. 16, 2020) (“McCoy
II”); McCoy v. HUD, No. 8:21-cv-583-JAK-JPR (“McCoy III”) (C.D.
Cal., filed Mar. 29, 2021). 	The McCoy I court, noting the
generality of Ms. McCoy’s allegations, concluded that she failed
to state a claim upon which relief could be granted, then
granted her leave to file an amended complaint, before
dismissing without prejudice for failure to prosecute. 	See May
24, 2021 Order, McCoy I (S.D. Cal. May 24, 2021) (ECF No. 15).
The McCoy II court noted the vague and conclusory nature of her
claims and the lack of specificity in her pleadings, before
dismissing without prejudice for failure to prosecute and
failure to comply with the court’s orders. 	See Mar. 11, 2021
R&R (ECF No. 27) & Mar. 31, 2021 Order, McCoy II (D. Colo. Mar.
11 & Mar. 31, 2021) (ECF No. 28). 	The McCoy III court similarly
found that her complaint lacked the information required by Rule
8(a)(2) and dismissed her complaint with leave to amend, before
dismissing for failure to prosecute. 	See Aug. 6, 2021 Order,
McCoy III (C.D. Cal. Aug. 6, 2021) (ECF No. 7); see also McCoy
III, 2021 U.S. Dist. LEXIS 197486, at *3, 2021 WL 4776061, at *1
(C.D. Cal. Oct. 13, 2021).
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In the Order issued this date, the court has directed Ms.
McCoy to file an amended complaint within thirty days, to render
the complaint compliant with Rule 8(a)(2). 	If Ms. McCoy fails
to file an amended complaint as directed, this action may be
dismissed without prejudice.
Conclusion
For the foregoing reasons, the magistrate judge recommends
that:
1. 	Ms. McCoy’s claims asserting violations of her
children’s rights should be dismissed without prejudice to
their ability to refile their own claims through counsel.
2. 	Ms. McCoy’s claims for damages for violations of
her federal constitutional rights should be dismissed, to
the extent they are asserted against the USDA, HUD, or HHS.
3. 	Ms. McCoy’s claims against the California and
Colorado Departments of Social Services should be dismissed
as barred by the Eleventh Amendment, to the extent those
parties are state agencies.
4. 	Ms. McCoy’s VAWA claims should be dismissed.
5. 	Ms. McCoy’s ADA claims should be dismissed, to
the extent they are asserted against the USDA, HUD, HHS, or
any federal employees.
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6. 	Ms. McCoy’s § 1983 claims should be dismissed, to
the extent they are asserted against the USDA, HUD, HHS, or
any federal employees.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file any objection within the specified time
waives the right to appeal the district court’s Order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). 	Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
November 1, 2022
cc: 	Leila Cruz McCoy, pro se
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