Opinion
21-CV-10364 (AT) (KHP)
10-11-2022
ARLENE JENKINS, Plaintiff, v. NYCHA and JOHN DOE, Defendants.
THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Arlene Jenkins (“Plaintiff”) brings this action against the New York City Housing Authority (“NYCHA”) and an unknown NYCHA employee (“John Doe”) (collectively, “Defendants”). The Complaint alleges that NYCHA deprived Plaintiff of adequate heat and hot water, and that it may have sent an employee - John Doe - into her apartment when she was not home and without her consent. Before the Court for a report and recommendation is Defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). (ECF No. 17.) For the reasons stated below, I respectfully recommend that Defendants' motion to dismiss be granted in its entirety.
BACKGROUND
NYCHA is a state public housing authority that was created to provide “decent, affordable housing for low- and moderate-income New Yorkers.” About NYCHA, NYC Housing Auth., https://www1.nyc.gov/site/nycha/about/about-nycha.page (last visited Oct. 11, 2022). Plaintiff is an unemployed individual who resides in NYCHA housing. (ECF Nos. 1-2.)
On December 3, 2021, Plaintiff, acting pro se, filed a Complaint in federal court. (ECF No. 2.) The Complaint alleges that Plaintiff has had “no heat” in her apartment “every fall & winter” since she has lived at her current address; that Plaintiff has “been back & forth to housing court for years” regarding the lack of heat but continues to experience issues with heat; and that Plaintiff has also experienced lack of hot water in the past. (ECF No. 2 at 5.) The Complaint also alleges that Plaintiff was informed by a NYCHA housing representative during a Housing Court proceeding on November 4, 2021, that on some unspecified date, “NYCHA went into [the apartment] without [Plaintiff] being home.” (Id.) The Complaint then asserts an unspecified claim against “anyone that enter[ed] that [apartment]” without Plaintiff's consent, to the extent that an unauthorized entry occurred. (Id.) The Complaint does not state what Plaintiff's injuries are or what relief she seeks. The Complaint asserts that the basis for federal jurisdiction is “Federal Question,” and that the relevant federal rights that have been violated are “dwelling act 79” and “no heat or infrequent.” (Id.) The Court understands “dwelling act 79” to refer to Section 79 of the Multiple Dwelling Law, which is a New York State law providing that apartments must be properly heated during the fall and winter months.
On December 16, 2021, the Court instructed NYCHA to identify the individual referenced in the Complaint who allegedly entered Plaintiff's apartment and directed Plaintiff to amend the Complaint within thirty days of receiving the person's identity in order to name the individual in the Complaint. (ECF No. 5.) On February 9, 2022, NYCHA informed the Court that after investigating the matter, it found no evidence that any NYCHA employee entered Plaintiff's apartment without Plaintiff's consent and thus could not ascertain the identity of John Doe. (ECF Nos. 11, 16.) Plaintiff did not amend the Complaint.
NYCHA did find that work orders were created to address Plaintiff's complaints of lack of heat or hot water, and that Plaintiff was present when heating plant technicians visited her apartment on November 4 and 5, 2021. (ECF No. 11.)
On April 6, 2022, Defendants moved to dismiss the Complaint. (ECF No. 17.) Plaintiff did not file an opposition brief by the May 16, 2022 deadline. In light of Plaintiff's pro se status, the Court granted Plaintiff an extension nunc pro tunc until August 23, 2022 to file an opposition brief, but Plaintiff did not file an opposition brief by the new deadline and still has not filed an opposition brief. Accordingly, the motion to dismiss is unopposed.
LEGAL STANDARDS
1. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“[F]ederal courts are courts of limited jurisdiction.” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quotation omitted). “Federal subject matter jurisdiction exists only where the action presents a federal question pursuant to 28 U.S.C. § 1331, or where there is diversity jurisdiction pursuant to 28 U.S.C. § 1332.” Yusim v. U.S. Dep't of Hous. & Urb. Dev., 409 F.Supp.3d 125, 128 (E.D.N.Y. 2018) (citation omitted). “Determining the existence of subject matter jurisdiction is a threshold inquiry.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010). A court must dismiss a complaint when it lacks subject matter jurisdiction of the claims raised. Christian v. Doe, 2022 WL 784016, at *1 (S.D.N.Y. Mar. 14, 2022) (citing Fed.R.Civ.P. 12(h)(3)). On a 12(b)(1) motion, the party who invokes the Court's jurisdiction bears the burden of proof to demonstrate that jurisdiction exists, however all reasonable inferences must be drawn in favor of the party asserting jurisdiction. McIntosh, 2018 WL 1275119, at 3-4.
2. Motion to Dismiss for Failure to State a Claim
For a complaint to survive a Rule 12(b)(6) motion to dismiss, the court must determine that the complaint contains “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is considered plausible on its face “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. While detailed factual allegations are not required, the complaint must contain more than mere “labels and conclusions or formulaic recitation of the elements of a cause of action.” Id. When considering a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cruz v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). Nevertheless, “threadbare recitals of the elements of a cause of action” that are supported by “conclusory” statements and mere speculation are inadequate and subject to dismissal. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quotation marks and citation omitted).
3. Standards Applied in Construing a Pro Se Plaintiff's Complaint
In considering a motion to dismiss a pro se plaintiff's complaint, the court must construe the complaint “liberally” and must read it to “raise the strongest arguments [it] suggest[s].” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (citation omitted). That said, the Court may not exempt a pro se party from compliance with relevant procedural rules and substantive law. McIntosh, 2018 WL 1275119, at *5. The court similarly must not “read into” the complaint any arguments that the complaint itself does not suggest. Rosenwasser v. Fordham Univ., 772 Fed.Appx. 1, 2 (2d Cir. 2019) (citation omitted). A pro se plaintiff's complaint, while construed liberally, must still plead sufficient facts to state a claim to relief that is plausible on its face. Mancuso v. Hynes, 379 Fed.Appx. 60, 61 (2d Cir. 2010) (citations omitted).
4. Leave to Amend a Complaint
When a motion to dismiss is granted, district courts generally grant a pro se plaintiff leave to amend the complaint to cure its defects, but leave to amend is not required where it would be futile. Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also Fed.R.Civ.P. 15(a)(2).
APPLICATION
Plaintiff asserts that the Court has subject matter jurisdiction over her claims because her claims raise a federal question pursuant to 28 U.S.C. § 1331. A case arises under federal law within the meaning of § 1331 if the complaint “establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 73435 (2d Cir. 2007) (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)). As discussed below, none of the claims raised in the complaint give rise to federal question jurisdiction.
Plaintiff does not allege that the alternative means for establishing federal jurisdiction - diversity jurisdiction -exists. Diversity jurisdiction is available when all adverse parties are “completely diverse in their citizenships” and the amount in controversy exceeds $75,000. Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001). There is no diversity jurisdiction here since the Complaint asserts Plaintiff is a citizen of New York, and NYCHA is also a citizen of New York, and accordingly the parties are not diverse. (Def. Br. 4 n.1.)
1. Claim as to Heat and Hot Water
The Complaint alleges that NYCHA failed to provide sufficient heat and hot water to Plaintiff's residence. Plaintiff alleges this failure violates the Multiple Dwelling Law, which is a state law. The claim can also be construed as an allegation that NYCHA breached the implied warranty of habitability, which is also a “uniquely state law claim.” Babul v. Demty Assocs. Ltd. P'ship, 2019 WL 79423, at *7 (E.D.N.Y. Jan. 2, 2019) (declining to exercise supplemental jurisdiction over a claim for breach of the implied warranty of habitability). Lack of heat and hot water are classic “residential landlord-tenant matters” over which it is well established that federal courts lack federal question subject matter jurisdiction. Galland v. Margules, 2005 WL 1981568, at *1 (S.D.N.Y. Aug. 17, 2005); see also Williams v. N.Y.C. Hous. Auth., 2009 WL 804137, at *9 (S.D.N.Y. Mar. 26, 2009) (explaining that claims arising from deficient housing conditions are typically within “the province of state courts and legislatures”); United Mut. Houses, L.P. v. Andujar, 230 F.Supp.2d 349, 354 (S.D.N.Y. 2002) (collecting cases).
Construed liberally, the Complaint arguably asserts a claim for the violation of federal statutory and regulatory provisions concerning access to adequate housing, such as 42 U.S.C. § 1437, et. seq., and 24 C.F.R. § 5.703(g). However, these federal laws do not provide a private right of action. See, e.g. Davis v. New York City Hous. Auth., 379 F.Supp.3d 237, 245-49 (S.D.N.Y. 2019) (explaining these federal laws and regulations do not “give rise to a federal right”); Green v. Konover Residential Corp., 1997 WL 736528, at *8-9 (D. Conn. Nov. 24, 1997) (holding that § 1437 does not give residents a “private right of action against their landlords for failure to maintain the premises in a safe and sanitary condition”). Similarly, a violation of these laws does not give rise to a civil rights claim under 42 U.S.C. § 1983. Davis, 379 F.Supp.3d at 245-49 (explaining federal housing laws and regulations “do not create an individual federal right to adequately heated housing enforceable in federal court under § 1983); see also Paige v. N.Y.C. Hous. Auth., 2018 WL 1226024, at *4 (S.D.N.Y. Mar. 9, 2018).
42 U.S.C. § 1437(a) sets out the declaration of policy of federal housing law; 42 U.S.C. § 1437d(1) governs the nature of leases that must be employed by public housing agencies; and 24 C.F.R. § 5.703 provides that federally funded public housing must comply with state and local housing laws and regulations.
Section 1983 provides a cause of action against persons who, acting under color of state law, subject individuals to the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983. In order to seek redress through § 1983, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997).
Finally, while in rare situations a plaintiff who has suffered ongoing problems with heat in public housing might have a plausible Section 1983 claim for violation of substantive due process rights, the Complaint here does not state such a claim. To start, Plaintiff does not allege any violation of her constitutional rights. Moreover, as a general matter, absent “exceptional circumstances,” only affirmative acts that violate a constitutional right can amount to a violation of substantive due process rights under the constitution. Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (citations omitted); Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citation omitted). The Complaint does not allege that NYCHA engaged in any affirmative conduct or maintained any policies to cause or worsen heat and hot water issues. Absent such allegations, no claim for violation of substantive due process rights can lie. Cf. Davis, 379 F.Supp.3d at 252-57 (finding substantive due process claim plausible based on detailed allegations including that NYCHA took affirmative steps to cover up residents' heating complaints resulting in alleged deprivation of rights to property and bodily integrity).
In sum, Plaintiff's claims regarding lack of heat and hot water do not give rise to federal question jurisdiction.
2. Claim Regarding John Doe
The Complaint also alleges that John Doe entered Plaintiff's apartment without her consent. This allegation can be construed as a breach of contract claim premised on the notion that NYCHA breached its lease obligations setting forth when it may enter Plaintiff's dwelling. Breach of contract actions are state claims that “do not implicate due process rights or involve constitutionally protected property rights.” Clapp v. LeBoeuf, Lamb, Leiby & MacRae, 862 F.Supp. 1050, 1058 (S.D.N.Y. 1994). This claim also may be construed as one for trespass, which is a tort that falls under state court jurisdiction. See Sundwall v. Reiner & Reiner, 141 F.3d 1152 (2d Cir. 1998) (affirming dismissal of claim asserting violation of state trespass law for lack of subject matter jurisdiction). Neither of these claims concerning John Doe falls within federal question jurisdiction.
Moreover, while a search of a person's home by a state agent may in some circumstances constitute a Fourth Amendment violation, see Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523, 534 (1967), no Fourth Amendment claim has been asserted here, because Plaintiff has not alleged that any search of her home occurred. Rather, the Complaint only alleges that John Doe “went into” the home. (ECF No. 2 at 5.) Compare Cox v. Dawson, 2020 WL 127890, at *5 (D. Conn. Jan. 10, 2020) (finding plaintiff asserted a Fourth Amendment claim against public housing authority where the plaintiff alleged the authority's employee entered the home in “an attempt to find something or to obtain information”), with Schipke v. Connecticut, 2019 WL 121783, at *6 (D. Conn. Jan. 7, 2019) (dismissing a Fourth Amendment claim that was premised solely on trespass and that made no reference to a search, seizure, or inspection within that count of the complaint).
Accordingly, dismissal of any claim regarding John Doe's entry onto the premises is appropriate pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.
Because the Court lacks subject matter jurisdiction over the claims, it does not consider Defendants' alternative argument for dismissal. See Cornwell v. Credit Suisse Grp., 666 F.Supp.2d 381, 385-86 (S.D.N.Y. 2009) (“[A]bsent authority to adjudicate, the Court lacks a legal basis to . . . consider the action further.”)
3. Leave to Amend
A court generally should not dismiss a pro se plaintiff's complaint without granting the plaintiff leave to amend, especially “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) (citation omitted). Here, the Court is skeptical that Plaintiff can state a valid federal claim because her claims concern landlord-tenant disputes that belong in housing court.
Nonetheless, if Plaintiff has other facts that NYCHA took affirmative steps to violate her constitutional right to substantive due process, she might have a viable § 1983 claim, like the plaintiff did in Davis, 379 F.Supp.3d at 250-57. While it is true that the Court gave Plaintiff an opportunity to amend the Complaint, that opportunity was premised on Defendants' identification of John Doe. (ECF No. 5) No John Doe was identified, so there was no reason to amend the Complaint for that purpose. This failure to amend, therefore, should not prejudice her ability to amend after a dismissal for lack of jurisdiction if she has facts that could support a federal claim. For this reason, I recommend that dismissal be without prejudice to amend.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Defendants' Motion to Dismiss be GRANTED without prejudice to amend.
The Clerk of the Court is respectfully requested to mail this Report and Recommendation to the Pro Se Plaintiff.
NOTICE
Defendants shall have fourteen days and Plaintiff shall have seventeen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). Defendants shall have fourteen days to serve and file any response, and Plaintiff shall have seventeen days to serve and file any response.
Any objections and any RESPONSES to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).