Opinion
5:22-CV-1202 (MAD/ML)
03-28-2023
BISHME SMITH; and PARIS SMITH, Plaintiffs, v. HOLLEY DAVIS; TERESA JOHNSON; JULIE RICHARDSON; STEPHANIE ALBERT; PRESERVATION MGMT., INC.; COLD BLACK RIVER L.P.; and KELLEY CANNON, Defendants.
BISHME SMITH Plaintiff, Pro Se PARIS SMITH Plaintiff, Pro Se
BISHME SMITH Plaintiff, Pro Se
PARIS SMITH Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent a pro se complaint in the above captioned action together with applications to proceed in forma pauperis, filed by Bishme Smith and Paris Smith (collectively “Plaintiffs”) to the Court for review. (Dkt. Nos. 1, 2, 3.) For the reasons discussed below, I grant Plaintiffs' in forma pauperis applications, and recommend that Plaintiffs' Complaint be (1) accepted in part for filing, and (2) dismissed (a) in part with leave to replead, and (b) in part without leave to replead. (Dkt. Nos. 1, 2, 3.)
I. BACKGROUND
Construed as liberally as possible, Plaintiffs' Complaint alleges that their rights were violated by Holley Davis, Teresa Johnson, Julie Richardson, Stephanie Albert, Preservation Management, Inc., Cold Black River L.P., and Kelley Cannon (collectively “Defendants”). (See generally Dkt. No. 1.) More specifically, Plaintiffs allege that since November 30, 2021, they have rented an apartment in a complex called “Black River Apartments,” which is owned by Defendant Cold Black River L.P. (“Defendant Cold Black River”), and managed by Defendant Preservation Management, Inc. (“Defendant Preservation”). (Dkt. No. 1 at 3-5.) Plaintiffs allege that Defendants Davis, Johnson, Richardson, and Albert are employed by Defendant Preservation Management, Inc. (Id. at 2.) Plaintiffs allege that as of February 28, 2022, Defendant Cannon rented another apartment in Black River Apartments. (Id. at 3-4.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Hereinafter “Defendants PMI” refers collectively to Defendants Cold Black River, Preservation, Davis, Johnson, Richardson, and Albert.
Plaintiffs allege that Plaintiff Bishme is a Black man with a mental health diagnosis. (Dkt. No. 1 at 1.) Plaintiffs allege that Plaintiff Paris is a white woman with a mental health diagnosis. (Id. at 2.) Plaintiffs allege that Defendants Davis, Johnson, and Cannon are white females. (Id. at 2-3.)
Plaintiffs allege that on or about December 7, 2021, they realized that their rent calculation was high in proportion to their earnings because it included child support that Plaintiff Paris was not receiving. (Dkt. No. 1 at 5.) Plaintiffs allege that they communicated this error to Defendants PMI several times, over the course of several months, and Defendants PMI failed to timely recalculate Plaintiffs' accurate rent amount. (See generally Dkt. No. 1.)
Plaintiffs allege that they encountered several other issues with their rented apartment from Defendants PMI including, inter alia: (1) access to the proper mailbox, (2) heating temperatures, (3) items being left in the fire escape, (4) items being placed on the back porch, and (5) bed bug inspections. (Id.)
Plaintiffs allege that they attempted to communicate with Defendants PMI regarding issues they were having with Defendant Cannon who-after moving in-rescued a dog that peed in front of their door, roamed unleashed in common areas, and was loud. (Dkt. No. 1 at 7.) Plaintiffs allege that Defendants PMI failed to take any action to address the issues they were having with Defendant Cannon, which resulted in a “major incident” between Plaintiff Bishme and Defendant Cannon on May 30, 2022. (Id. at 8.)
Plaintiffs allege that on May 30, 2022, Defendant Cannon's son stood in front of Plaintiffs' door with Defendant Cannon's dog, preventing Plaintiff Bishme from entering Plaintiffs' apartment. (Id.) Plaintiffs allege that Plaintiff Bishme politely asked that Defendant Cannon's son and the dog move, but that when he refused, Plaintiff Bishme “grabbed the leash and politely moved the dog aside.” (Id.) Plaintiffs allege that Plaintiff Bishme entered the apartment and a few moments later Defendant Cannon “pound[ed] on the door,” Plaintiff Bishme opened the door, and Defendant Cannon “aggressively scream[ed] and yell[ed] in a threatening manner with her hand in [P]laintiff Bishme's face.” (Id.) Plaintiffs allege that Plaintiff Bishme then called the police but that, due to a personal relationship between the responding officer and Defendant Cannon, and racism, the police took a statement from Defendant Cannon and left. (Id. at 8-9.) Plaintiffs allege that approximately one week later, police charged Plaintiff Bishme with harassment for the incident with Defendant Cannnon on May 30, 2022. (Id. at 9.)
Plaintiffs allege that on June 29, 2022, during a meeting with Defendant Johnson, they stated that they felt they were “being treated differently” because of Plaintiff Bishme's race and that “management did not respond or deny that accusation.” (Dkt. No. 1 at 11.)
Plaintiffs allege that on July 27, 2022, they filed a complaint with FHEO HUD regarding the racial and disability discrimination they experienced in their interactions with Defendants PMI. (Dkt. No. 1 at 14.) More specifically, the Complaint alleges that Plaintiffs' FHEO HUD complaint alleged that (1) Defendants PMI were not responding to Plaintiffs' requests to move to another apartment because of (a) their mental health, and (b) issues with Defendant Cannon, and (2) Defendants PMI were not properly adjusting their rent amount. (Id.)
Plaintiffs allege that on September 10, 2022, they received a response to their FHEO HUD complaint, which indicated that it had been sent to the “other parties” against whom the discrimination was alleged. (Id. at 17.)
Plaintiffs allege that on September 14, 2022, they received a notice to vacate directing them to vacate their apartment by November 30, 2022, because their lease was up. (Dkt. No. 1 at 17.) Plaintiffs allege that Defendant Johnson informed them that the lease was not being renewed “based on a police report and court records” providing “reasonable grounds to believe that [P]laintiff Bishme violated a provision of the lease during the incident on May 30[], 2022.” (Id. at 17-18.)
Plaintiffs allege that they exchanged several e-mails with Defendants PMI and provided documentation reflecting that the criminal charge against Plaintiff Bishme (related to the incident with Defendant Cannon on May 30, 2022) was dismissed. (Dkt. No. 1 at 18-19.) Plaintiffs allege that, notwithstanding, Defendants PMI informed them that their lease would not be renewed. (Id. at 19.)
Plaintiffs allege that on October 26, 2022, they were served with another notice to vacate and non-renewal that was dated October 18, 2022, which stated-falsely-that the non-renewal was because Plaintiff Bishme admitted to criminal activity. (Id. at 21.)
Plaintiffs allege that Defendants Johnson and Davis “have used their community connections to have people at the bar across the street watch and stalk [P]laintiffs' family.” (Dkt. No. 1 at 22.)
Based on these factual allegations, Plaintiffs appear to assert the following eleven causes of action: (1) a claim pursuant to 42 U.S.C. § 1981 against Defendants; (2) a claim pursuant to 42 U.S.C. § 1982 against Defendants; (3) a claim pursuant to 29 U.S.C. § 794 against Defendants PMI; (4) a claim pursuant to 42 U.S.C. § 2000d against Defendants PMI; (5) a claim pursuant to 42 U.S.C. § 3604 against Defendants PMI; (6) a claim pursuant to 42 U.S.C. § 3617 against Defendants PMI; (7) a claim pursuant to New York Executive Law § 296(5-7) against Defendants PMI; (8) a claim pursuant to New York Real Property Law § 223-b against Defendants PMI; (9) a claim pursuant to New York Real Property Law § 235-b against Defendants PMI; (10) a claim of intentional infliction of emotional distress pursuant to New York common law against Defendants; and (11) a claim of breach of contract pursuant to New York common law against Defendants PMI. (Dkt. No. 1 at 24-32.) As relief, Plaintiffs seek declaratory judgment, a permanent injunction prohibiting Defendants from discriminating against them, compensatory damages in the amount of $350,000, punitive damages “in an amount that would punish Defendants . . . and . . . deter [them] from future discriminatory behavior,” and attorney's fees and costs. (Id. at 32-33.)
II. PLAINTIFFS' APPLICATIONS TO PROCEED IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiffs' in forma pauperis applications (Dkt. Nos. 2, 3), the Court finds that Plaintiffs meet this standard.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Therefore, Plaintiffs' applications to proceed in forma pauperis are granted.
Plaintiffs are reminded that, although their applications to proceed in forma pauperis have been granted, they are still required to pay fees that they may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines 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.” 28 U.S.C. § 1915(e)(2).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe her pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiffs' Complaint with this principle in mind, I recommend that Plaintiffs' Complaint be accepted in part for filing and dismissed in part for failure to state a claim upon which relief may be granted.
A. Claims Pursuant to 42 U.S.C. §§ 1981, 1982 Against Defendants
The Second Circuit notes that, “Section 1981 provides that ‘all persons have equal right to make and enforce contracts,' and § 1982 ‘establishes that all persons have equal right to purchase, lease, sell, hold, and convey real and personal property.'” Silva v. Farrish, 47 F.4th 78, 89-90 (2d Cir. 2022) (quoting Costello v. Town of Huntington, 14-CV-2061, 2015 WL 1396448, at *12 (E.D.N.Y. Mar. 25, 2015) (citing 42 U.S.C. §§ 1981, 1982)). To state a prima facie claim under either provision, plaintiffs must prove: “(1) they are members of a racial minority; (2) an intent to discriminate on the basis of their race by defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
With respect to the second element, at the pleading stage, a plaintiff must “specifically allege the ‘circumstances giving rise to a plausible inference of racially discriminatory intent.'” Wade v. Kay Jewelers, Inc., 17-CV-0990, 2018 WL 4440532, at *7 (D. Conn. Sept. 17, 2018) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994)).
Here, the Complaint fails to allege facts plausibly suggesting that Defendants acted with racially discriminatory intent. (See generally Dkt. No. 1.) Plaintiffs' assertions that (1) Defendants PMI failed to refute an allegation that they were treating Plaintiffs “differently” based on race (Dkt. No. 1 at 11, 17-18), (2) on July 20, 2022, Defendant Johnson “was speaking to [Plaintiff Paris and] was respectful and would listen without cutting her off, but as soon as Plaintiff Bishme, a black man went to speak, she would cut him off repeatedly and not listen to what he was trying to explain and tell him that he was wrong” (Dkt. No. 1 at 13), and (3) “any other tenant who is Caucasian does not have these same issues with having their rent at the corrected amount well before this” (Dkt. No. 1 at 14; see also Dkt. No. 1 at 23 [alleging that Plaintiffs “are being treated differently than any other Caucasian tenants in the building.”]), are insufficient to plausibly suggest that Defendants acted with the requisite racially discriminatory intent. Instead, “the abundance of other possible reasons for [Defendant's actions] combined with the lack of any specific factual support for [Plaintiffs'] claim of racial motivation illustrates that [their] claim[s] here are simply ‘naked allegation[s]' of racial discrimination.” Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir. 1994) (quoting Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en banc)); see Miller v. Bridgeport Bd. of Educ., 12-CV-1287, 2013 WL 3936925, at *4 (D. Conn. July 30, 2013) (holding that “the mere fact that [an] attorney was Caucasian and the Plaintiff is African American is insufficiently particularized to establish that race was a substantial factor in the Defendants' failure to pay [the Plaintiff].”); Rivera v. Metro Transit Auth., 750 F.Supp.2d 456, 461-62 (S.D.N.Y. 2010) (“The unstated premise of [plaintiff's] argument is that anything unwelcome that befalls any person who is an identifiable member of a minority group probably occurs because the individual is a member of that group. While racism and all its manifestations are deplorable, the inference that it is present whenever something unwelcome happens to a member of an identifiable minority group is not rational. There is no evidence that anything that any defendant may have done was motivated, even in part, by an intention to discriminate on the basis of race.”); Tejwani v. Untied Airlines, Inc., 08-CV-2966, 2009 WL 860064, at *4 (S.D.N.Y. Mar. 31, 2009) (noting, in dismissing § 1981 claim, that complaint “identifies a number of race-neutral factors that may have led” to the alleged discriminatory conduct).
As a result, I recommend that Plaintiffs' discrimination claims pursuant to 42 U.S.C. §§ 1981, 1982 against Defendants be dismissed for failure to state a claim upon which relief may be granted.
B. Claim Pursuant to 29 U.S.C. § 794 Against Defendants PMI
Plaintiffs next assert discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). A prima facie violation of Section 504 requires facts sufficient to establish that “(1) plaintiff is a ‘qualified individual with a disability;' (2) plaintiff was ‘excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by [the] public entity;' and (3) such exclusion or discrimination was due to [plaintiff's] disability.'” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (quoting Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009)).
“[I]ndividuals cannot be held liable under the Rehabilitation Act.” Burris v. Hous. and Servs. Inc., 17-CV-9289, 2019 WL 1244494, at *5 (S.D.N.Y. Mar. 18, 2019) (citing J.L. on behalf of J.P. v. N.Y.C. Dep't of Educ., 324 F.Supp.3d 455, 467 n.4 (S.D.N.Y. 2018)). As a result, I recommend that Plaintiff's Rehabilitation Act claims against Defendants Davis, Johnson, Richardson, and Albert, be dismissed with prejudice. Burris, 2019 WL 124494, at *5 (dismissing with prejudice the plaintiff's Rehabilitation Act claims against individual defendants).
With respect to Plaintiffs' Section 504 claim against Defendants Cold Black River and Preservation, I recommend that it be dismissed because the Complaint fails to allege facts plausibly suggesting that (1) Plaintiffs were disabled within the meaning of the Rehabilitation Act, or (2) Defendants discriminated against Plaintiffs because of their disability. (See generally Dkt. No. 1.)
First, Section 504 expressly incorporates-with certain qualifications not applicable here-the Americans with Disabilities Act's definition of the term “disability.” 29 U.S.C. § 705(20)(B); see B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 159 (2d Cir. 2016) (“Section 504 expressly incorporates . . . the ADA's definition.”). The ADA defines “disability” as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). The ADA defines “major life activities” as, inter alia, “learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A). Plaintiffs do not allege any facts concerning their alleged “mental health diagnos[e]s.” (See generally Dkt. No. 1 at 1-2 [alleging that Plaintiffs each have a mental health diagnosis but failing to identify what those diagnoses are or how they substantially limit one or more major life activity of Plaintiffs']); Saidin v. City of New York, 20-CV-2851, 2020 WL 2571043, at *6 (S.D.N.Y. May 19, 2020) (dismissing the plaintiff's Rehabilitation Act claim because, inter alia, he did “not allege any facts concerning his mental or medical disability.”).
Second, Plaintiffs fail to allege facts alleging that Defendants took any action or failed to take action because of their disability or perceived disabilities. At one point in the Complaint, Plaintiffs alleged that they requested a transfer to a different building managed by Defendant Preservation because their strained relationship with Defendant Cannon was aggravating their disabilities. (Dkt. No. 1 at 14.) However, the Complaint also alleged that Plaintiffs believed that they were denied this accommodation because of racial discrimination (Dkt. No. 1 at 11) and that the accommodation request was made to protect their “safety and well-being” (Dkt. No. 1 at 1617.) Thus, Plaintiffs failed to allege that the rejection of the transfer request was due to Plaintiffs' disabilities.
For each of these alternative reasons, I recommend that Plaintiffs' claim pursuant to the Rehabilitation Act be dismissed.
C. Claim Pursuant to 42 U.S.C. § 2000d Against Defendants PMI
Section 601 of Title VI of the Civil Rights Act of 1964 provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To state a claim under Title VI, a plaintiff must allege that (1) the defendant discriminated against him on the basis of race, color, or national origin; (2) the discrimination was intentional; and (3) the discrimination was a substantial and motivating factor for the defendant's actions. See Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001); Alexander v. Sandoval, 532 U.S. 275, 281 (2001) (“Title VI itself directly reach[es] only instances of intentional discrimination,” not disparate impact).
“Title VI does not provide for individual liability.” Sherman v. Yonkers Pub. Schs., 21-CV-7317, 2023 WL 137775, at *7 (S.D.N.Y. Jan. 9, 2023) (citing Bayon v. State Univ. of N.Y. at Buffalo, 98-CV-0578, 2001 WL 135817, at *2) (W.D.N.Y. Feb. 15, 2001)). As a result, I recommend that Plaintiff's Title VI claim against Defendants Davis, Johnson, Richardson, and Albert, be dismissed with prejudice.
With respect to Plaintiffs' Title VI claim against Defendants Cold Black River and Preservation, I recommend that it be dismissed for the reasons set forth above in Part IV.A. of this Order and Report-Recommendation-because the Complaint fails to allege facts plausibly suggesting that Plaintiffs were discriminated against on the basis of race. See also Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002) (“Even if [plaintiff's] highly dubious claim that he was unfairly singled out for punishment by the instructors is credited, [plaintiff] has done little more than cite to his alleged mistreatment and ask the court to conclude that it must have been related to his race.”); Varughese v. Mount Sinai Med. Ctr., 12-CV-8812, 2015 WL 1499618, at *42 (S.D.N.Y. Mar. 27, 2015) (“fallacy” for the plaintiff to conclude: “I belong to a protected class; something bad happened to me at work; therefore, it must have occurred because I belong to a protected class”); Rissman v. Chertoff, 08-CV-7352, 2008 WL 5191394, at *4 (S.D.N.Y. Dec. 12, 2008) (“In essence, plaintiff alleges that because he was yelled at [by his supervisors], this must have been because [of his protected status]. Such conclusory and speculative statements are insufficient.”).
As a result, I recommend that Plaintiffs' Title VI claim be dismissed for failure to state a claim upon which relief may be granted.
D. Claims Pursuant to the Fair Housing Act Against Defendants PMI
The Fair Housing Act (“FHA”) also provides that “it shall be unlawful . . . to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of . . . race [or] color.” 42 U.S.C. § 3604(b). The FHA also forbids “coerc[ing], intimidat[ing], threaten[ing], or interfer[ing] with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section . . . 3604 ....” 42 U.S.C. § 3617. “The FHA also prohibits retaliation against persons who have asserted their rights under the FHA.” Bethea v. NYCHA Law Dep't, 23-CV-0803, 2023 WL 2394116, at *2 (S.D.N.Y. Mar. 6, 2023) (citing 42 U.S.C. § 3617).
Construing the Complaint liberally, Plaintiff appears to make three separate claims pursuant to the FHA against Defendants PMI: (1) a claim of discrimination, (2) a claim of retaliation, and (3) a claim of hostile housing environment. (See generally Dkt. No. 1.)
1. Discrimination
To set out a prima facie case of discrimination under the FHA, the plaintiffs must show that: (1) they are members of a protected class; (2) the defendants took adverse action against them; and (3) the adverse action took place under circumstances giving rise to an inference of discrimination. DeSouza v. Park W. Apartments, Inc., 15-CV-1668, 2018 WL 2990099, at *7 (D. Conn. June 14, 2018); see McCulloch v. Town of Milan, 559 Fed.Appx. 96, 98 (2d Cir. 2014) (“To establish a prima facie case of discrimination under the disparate treatment theory, ‘the plaintiff[ ] must present evidence that animus against the protected group was a significant factor in the position taken by the [defendants]'”) (internal quotation marks and citations omitted).
Although the Complaint alleges that Plaintiffs each have a “mental health diagnosis,” as set forth above in Part IV.B. of this Order and Report-Recommendation, it fails to allege facts plausibly suggesting that Plaintiffs are “disabled” within the meaning of the law such that they are members of a protected class. Moreover, for the reasons set forth above, the Complaint fails to allege facts plausibly suggesting that Defendants PMI took an adverse action against Plaintiffs under circumstances giving ride to an inference of discrimination. See Dean v. Doberman, 21-CV-8320, 2023 WL 2480012, at *9 (S.D.N.Y. Mar. 13, 2023) (citing Tasfay v. Ramos, 20-CV-5472, 2021 WL 4443303, at *2 (S.D.N.Y. Sept. 28, 2021); Francis v. Kings Park Manor, Inc., 992 F.3d 67, 72-73 (2d Cir. 2021) (affirming dismissal of complaint that “lacks even minimal support for the proposition that [defendants] were motivated by discriminatory intent”)) (holding that a “conclusory allegation that defendants made discriminatory statements during the [state court action], which ‘persuaded the judge's view of' [the] plaintiff, is conclusory and ‘insufficient to state a claim of discrimination under the FHA.'”).
As a result, I recommend that Plaintiffs' claims of discrimination pursuant to the FHA be dismissed for failure to state a claim upon which relief may be granted.
2. Retaliation
The plaintiffs bear the initial burden to make their prima facie case by showing that: (1) they engaged in protected activity; (2) the alleged retaliators knew that the plaintiffs were involved in protected activity; (3) an adverse decision or course of action was taken against the plaintiffs; and (4) a causal connection exists between the protected activity and the adverse action. Reg'l Econ. Cmty. Action Program, Inc., 294 F.3d 35, 53-54 (2d Cir. 2002), superseded by statute on other grounds. A causal connection can be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow [individuals] who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019). The “plaintiff's burden at this prima facie stage is de minimis.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' FHA retaliation claim against Defendants PMI. See Burris v. Hous. and Servs. Inc., 17-CV-9289, 2023 WL 1966120, at *10-11 (S.D.N.Y. Feb. 13, 2023) (holding that (1) the plaintiff engaged in protected activity by filing a “NYSDHR Complaint,” (2) a reasonable jury could conclude that an eviction constitutes an adverse action, and (3) the evidence was sufficient to establish the required causal link for a prima facie case where the adverse action occurred less than one month after the plaintiff's participation in a protected activity).
3. Hostile Housing Environment
Courts in this Circuit have construed Section 3604(b) of the FHA to prohibit the creation of a “hostile environment” by individuals who have control or authority over the “terms, conditions, or privileges of sale or rental of a dwelling.” Favourite v. 55 Halley St., Inc., 381 F.Supp.3d 266, 277 (S.D.N.Y. 2019) (citations omitted). A plaintiff asserting a hostile housing environment claim pursuant to Section 3604(b) must establish that (1) he was subjected to harassment that was sufficiently pervasive and severe so as to create a hostile housing environment, (2) the harassment was because of the plaintiff's membership in a protected class, and (3) the defendants are responsible for the allegedly harassing conduct towards the plaintiff. Favourite, 381 F.Supp.3d at 277 (citing Cain v. Rambert, 13-CV-5807, 2014 WL 2440596 at *5 (E.D.N.Y. May 30, 2014)) (internal citations omitted).
Here, the Complaint appears to allege that Defendant Cannon created a “hostile living environment” by (1) being outside when Plaintiffs arrived home at various times, and (2) telling others about issues between Plaintiffs and Defendant Cannon. (Dkt. No. 1 at 22-23.) In addition, Plaintiffs appear to allege that Defendants PMI failed to adequately ameliorate Defendant Cannon's behavior. (See generally Dkt. No. 1.) While there can be little doubt that relations between Plaintiffs and Defendant Cannon are antagonistic, “Congress did not intend the FHA to provide a remedy for every squabble, even continuing squabbles, between neighbors . . . .” Lachira v. Sutton, 05-CV-1585, 2007 WL 1346913, at *20 (D. Conn. May 7, 2007) (internal quotation marks omitted). “Behavior that is rude or mean-spirited, but not discriminatory, does not fall within the ambit of the FHA.” Kalashnikov v. Myfield Lane Homeowners' Assn., Inc., 20-CV-1018, 2023 WL 1862763, at *15 (D. Conn. Feb. 9, 2023). Here, the Complaint fails to allege facts plausibly suggesting that Plaintiffs were harassed because of their race or any other protected status.
As a result, I recommend that Plaintiffs' claim for hostile housing environment be dismissed for failure to state a claim upon which relief may be granted.
E. New York State Law Claims
1. New York State Human Rights Law (“NYSHRL”) a. New York Executive Law § 296(5)
The NYSHRL provides that it is unlawful discriminatory practice to refuse to (1) “sell, rent, lease or otherwise to deny . . . any person or group of persons . . . a housing accommodation because of the race . . . [or] national origin . . . of such person or persons”; (2) “discriminate against any person because of race . . . [or] national origin . . . in the terms, conditions or privileges of the sale, rental or lease of any . . . housing accommodation”; or (3) “make any record or inquiry in connection with the prospective purchase, rental or lease of . . . a housing accommodation which expresses, directly or indirectly, any limitation, specification or discrimination as to race . . . [or] national origin . . ., or any intent to make any such limitation, specification or discrimination.” N.Y. Exec. Law §§ 296(5)(a)(1)-(3), 296(5)(c)(2).
“‘Claims under the FHA and [NYS]HRL § 296 are evaluated under the same framework.'” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 80 (2d Cir. 2021) (quoting Olsen v. Stark Homes, Inc., 759 F.3d 140, 153 (2d Cir. 2014)).
For the reasons set forth above in Part IV.D.1. of this Order and ReportRecommendation, I recommend that Plaintiffs' NYSHRL discrimination claims pursuant to N.Y. Exec. Law § 296(5) be dismissed because Plaintiffs failed to allege facts plausibly suggesting that they were discriminated against by Defendants PMI.
b. New York Executive Law § 296(7)
To state a claim for retaliation under the NYSHRL, “the plaintiff must, at the very least, allege that as a result of her engagement in protected activity, the defendant engaged in conduct that was reasonably likely to deter a person from engaging in the protected activity.” Rubin v. New York City Bd. of Educ., 20-CV-10208, 2023 WL 1972729, at *19 (S.D.N.Y. Jan. 6, 2023) (citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)).
For the reasons set forth above in Part IV.D.2. of this Order and ReportRecommendation, I recommend that a response be required to Plaintiffs' NYSHRL retaliation claims pursuant to N.Y. Exec. Law § 296(7) against Defendants PMI.
c. New York Executive Law § 296(6)
Claims that individual defendants aided and abetted violations of NYSHRL, in violation of N.Y. Exec. L. § 296(6), are tied to the primary NYSHRL violation. If a plaintiff is unable to establish retaliation pursuant to NYSHRL, then he likewise cannot establish liability for aiding and abetting such retaliation. See White v. Pacifica Found., 973 F.Supp.2d 363, 378 (S.D.N.Y. 2013) (collecting cases).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' aiding and abetting NYSHL retaliation claim against Defendants PMI. However, to the extent that Plaintiffs' claim pursuant to N.Y. Exec. Law § 296(6) is construed as alleging a claim of aiding and abetting discrimination, I recommend that it be dismissed because I recommend that Plaintiffs' underlying NYSHRL discrimination claim be dismissed. See Ndongo v. Bank of China Ltd., 22-CV-5896, 2023 WL 2215261, at *9 (S.D.N.Y. Feb. 24, 2023) (dismissing the plaintiff's aiding and abetting claims pursuant to N.Y. Exec. Law § 296(6) “[b]ecause the Complaint fails to plead an underlying violation.”).
2. New York Real Prop. Law
a. New York Real Prop. Law § 223-b
Pursuant to New York Real Prop. Law § 223-b, a landlord shall be subject to a civil action if the landlord retaliates against a tenant for actions that the tenant took in good faith to secure or enforce his/her rights. To succeed on a claim pursuant to N.Y. Real Prop. § 223-b, Plaintiffs must establish that “(1) they exercised a protected right in her conduct; (2) they had a serious, reasonable, bona fide grievance with a foundation in fact; (3) they did not create the condition; (4) the grievance was present at the time Petitioner commenced the proceeding; and (5) Petitioner's overriding reason to evict Respondents was to retaliate for exercising their constitutional rights.” Stefanis v. Cavicchio, 75 Misc.3d 1225(A), at *2 (N.Y. Westchester Cnty. Mar. 10, 2022) (citing Toms Point Apts. v. Goudzward, 72 Misc.2d 629 (N.Y. Dist. Ct. Nassau Cnty. 1972)). In addition, N.Y. Real Prop. Law § 223-b(5) “provides for a rebuttable presumption that a landlord is acting in retaliation if the tenant establishes that the landlord service a notice to quit, or institutes an action or proceeding to recover possession, within one year after a good faith complaint was made.” MKBH Mgmt. LLC v. Strachin, 72 Misc.3d 1211(A), at *4 (N.Y. City Ct. Mount Vernon July 13, 2021).
For the reasons set forth above in Part IV.D.2. of this Order and ReportRecommendation, I recommend that a response be required to Plaintiffs' retaliation claim pursuant to N.Y. Real Prop. Law § 223-b against Defendants PMI.
b. New York Real Prop. Law § 235-b
New York Real Prop. Law § 235-b provides that “in any lease agreement for residential premises there is an implied warranty of habitability under which a landlord has a nonwaivable duty to make sure that tenants are not subjected to any conditions endangering or detrimental to their life, health or safety.” Zar Realty LLC v. Xia, 77 Misc.3d 1225(A), at *2 (N.Y. New York Cnty. Jan. 9, 2023). This duty is a condition to tenants' obligation to pay rent. See Park W. Mgmt. Corp. v Mitchell, 47 N.Y.2d 316, 327 (N.Y. 1979). Depending on the extent of a landlord's breach, tenants may be entitled to a full withholding of rent or “an abatement in their contracted-for rent,” which is measured as “the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach.” Park W. Mgmt. Corp., 47 N.Y.2d at 329.
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' breach of the warranty of habitability claim against Defendants PMI pursuant to N.Y. Real Prop. Law § 223-b.
3. Intentional Infliction of Emotional Distress (“IIED”)
In New York, to state a claim for IIED, plaintiffs must plead: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (N.Y. 1993). “The standard for extreme and outrageous conduct is incredibly high.” Phillips v. The Fashion Institute of Tech., 20-CV-0221, 2023 WL 2525677, at *7 (S.D.N.Y. Mar. 15, 2023). The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303 (N.Y. 1983). Due to this very high threshold, IIED claims “generally do not survive dispositive motions.” Allam v. Meyers, 09-CV-10580, 2011 WL 721648, at *6 (S.D.N.Y. Feb. 24, 2011). “Indeed, the New York Court of Appeals has rejected every claim for intentional infliction of emotional distress it has considered because the conduct was not sufficiently outrageous or extreme.” Phillips, 2023 WL 2525677, at *7) (citing Howell, 81 N.Y.2d at 122). The few claims upheld by the Appellate Divisions have involved “longstanding campaign[s] of deliberate, systematic, and malicious harassment.” Seltzer v. Bayer, 272 A.D.2d 263, 264 (N.Y.App.Div. 1st Dep't 2000).
The actions alleged in the Complaint do not approach the type of egregious conduct necessary to support a claim for intentional infliction of emotional distress. Courts have repeatedly declined to hold behavior such as threats to be extreme and outrageous. See e.g., Walther v. Maricopa Int'l Inv., Corp., 97-CV-4816, 1998 WL 689943, at *4 (S.D.N.Y. Sept. 30, 1998) (repeated verbal threats such as “c[***]sucker you're gonna pay” fell short of “extreme and outrageous” threshold); Torain v. Casey, 16-CV-2682, 2016 WL 6780078, at *2 (S.D.N.Y. Sept. 16, 2016) (threat to break plaintiff's jaw insufficient to establish IIED), report and recommendation adopted, 2016 WL 6775440 (S.D.N.Y. Nov. 14, 2016); Saleh v. United States, 12-CV-4598, 2013 WL 5439140, at *11-12 (S.D.N.Y. Sept. 27, 2013) (defendant's threats and plaintiff's resulting fear “that at any moment he could be attacked physically or harassed[,] . . . kidnapped[,] or even killed” did not rise to required level of conduct), aff'd, 580 Fed.Appx. 22 (2d Cir. 2014); Owen v. Leventritt, 174 A.D.2d 471, 472 (N.Y.App.Div. 1st Dep't 1991) (threat to kill pregnant plaintiff insufficient to support a cause of action for IIED). It follows that the much less heinous conduct alleged here also fails to constitute “extreme and outrageous” behavior. As a result, I recommend that Plaintiffs' IIED claim be dismissed for failure to state a claim upon which relief may be granted.
4. Breach of Contract
“[I]n order to establish a claim for breach of contract, a plaintiff must prove, by a preponderance of the evidence, (1) the existence of a contract between itself and that defendant, (2) performance of the plaintiff's obligations under the contract, (3) breach of the contract, and (4) damages to the plaintiff caused by the defendant's breach.” OOCL (USA) Inc. v. Transco Shipping Corp., 13-CV-5418, 2015 WL 9460565, at *4 (S.D.N.Y. Dec. 23, 2015) (citation omitted).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' breach of contract claim against Defendants PMI.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
It is not clear whether a better pleading would permit Plaintiffs to assert cognizable claims against (1) Defendants pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 1982, and New York common law for intentional infliction of emotional distress, (2) Defendants Cold Black River and Preservation pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 2000d, and (3) Defendants PMI pursuant to (a) the FHA for discrimination and hostile living environment, and (b) N.Y. Exec. Law §§ 296(5) and 296(6) (to the extent it relates to an underlying discrimination claim). Because Plaintiffs have not previously amended their Complaint, I recommend that they be granted leave to replead those claims.
However, the issue with Plaintiffs' claims pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 2000d against Defendants Davis, Johnson, Richardson, and Albert are substantive such that a better pleading will not cure it. As a result, I recommend that those claims be dismissed without leave to replead.
If Plaintiffs choose to file an amended complaint, they should note that the law in this circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'” Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiffs must clearly set forth facts that give rise to the claims, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of any of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Finally, Plaintiffs are informed that any such amended complaint will replace the existing Complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiffs' applications to proceed in forma pauperis (Dkt. Nos. 2, 3) are GRANTED only for purposes of filing and any appeal unless the trial court certifies in writing that the appeal is not taken in good faith; and it is further respectfully
RECOMMENDED that the Court ACCEPT FOR FILING and require an answer to Plaintiffs' Complaint (Dkt. No. 1) to the extent that it asserts the following claims: (1) a claim pursuant to the FHA alleging retaliation against Defendants PMI, (2) a claim pursuant to N.Y. Exec. Law §§ 296(6-7) alleging retaliation against Defendants PMI, (3) a claim pursuant to N.Y. Real Prop. Law § 223-b against Defendants PMI, (4) a claim pursuant to N.Y. Real Prop. Law § 235-b against Defendants PMI, and (5) a claim of breach of contract pursuant to New York common law against Defendants PMI; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiffs' Complaint (Dkt. No. 1) to the extent that it asserts the following: (1) a claim pursuant to 42 U.S.C. § 1981 against Defendants, (2) a claim pursuant to 42 U.S.C. § 1982 against Defendants, (3) a claim pursuant to 29 U.S.C. § 794 against Defendants Cold Black River and Preservation; (4) a claim pursuant to 42 U.S.C. § 2000d against Defendants Cold Black River and Preservation; (5) claims pursuant to the FHA against Defendants PMI alleging (a) discrimination, and (b) hostile living environment; (6) a claim pursuant to N.Y. Exec. Law § 296(5-6) to the extent it alleges discrimination against Defendants PMI; and (7) a claim pursuant to New York common law alleging intentional infliction of emotional distress against Defendants, because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT PREJUDICE BUT WITHOUT LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent that it alleges claims pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 2000d against Defendants Davis, Johnson, Richardson, and Albert because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this order, report, and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiffs with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).