Opinion
19-CV-6069 (CM)
11-04-2019
MICHAEL D. ANDREWS, Plaintiff, v. CITY OF NEW YORK; HUMAN RESOURCES ADMINISTRATION; LETO CONCEPCION; VENUS BROWN; PEPREO, Defendants.
ORDER OF DISMISSAL :
Plaintiff, who is proceeding pro se and in forma pauperis, filed this complaint alleging that Defendants violated his rights. By order dated September 11, 2019, the Court directed Plaintiff to amend his complaint to address deficiencies in his original pleading. Plaintiff filed an amended complaint on October 2, 2019, and the Court has reviewed it. The action is dismissed for the reasons set forth below.
Plaintiff has several other actions, including an action challenging the denial of social security benefits, Andrews v. Comm'r of Social Security, ECF 1:19-CV-4095, 2 (JGK) (S.D.N.Y.), an action relating to his criminal proceedings, Andrews v. DHS, ECF 1:19-CV-5622, 2 (CM) (S.D.N.Y.), and an action against a lawyer who represented him in a case that settled, Andrews v. Coalition for the Homeless, ECF 1:19-CV-6070, 2 (S.D.N.Y.).
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or portion thereof, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
The following allegations are from Plaintiff Michael Andrews's amended complaint. Plaintiff had "numerous issues" with his housing at 1088 Anderson Avenue in Bronx County, New York. (Am. Compl. at 10.) This "forced[him] to go to a hotel [and he] was told [he] would get [his] money back" from someone, but now "the[y are] saying no." (Id.)
Plaintiff has new housing but is "hav[i]ng problems in the new place." (Id.) The superintendent does make prompt repairs to his new apartment, but "the wall has mold in it." (Id.) Leto Concepcion of Institute for Community Living, Inc. (ICL) is "letting [it] get wors[e]." (Id.) Plaintiff states that "they know I have a[n] autoimmune" disease, though it is unclear to whom he is referring.
Plaintiff complained to the New York City Department of Housing Preservation & Development (HPD), and an HPD inspector visited his apartment on October 2, 2019, the same day that he filed this amended complaint. (Id. at 14.) The HPD complaint form attached to the amended complaint indicates that a tenant can contact the Emergency Services Bureau if repairs of housing violations are not begun within a certain number of days of a violation and explains that tenants have the right to initiate an action against the landlord in Housing Court. (Id.)
In his amended complaint, Plaintiff names the Human Resources Agency (HRA), the City of New York, and three employees of the non-profit ICL (Leto Concepcion, Venus Brown, and "Pepreo").
DISCUSSION
A. Human Resources Administration
As an agency of the City of New York, the HRA is not an entity that can be sued in its own name. N.Y. City Charter ch. 17, § 396 ("[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law."); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); Gault v. Admin. Fair Hearing at 14 Boerum Place, No. 14-CV-7398, 2016 WL 3198280, at *3 (E.D.N.Y. June 8, 2016); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 395 (S.D.N.Y. 2010) ("[A] plaintiff is generally prohibited from suing a municipal agency."). Instead, any claims against the HRA must be brought against the City of New York. The Court therefore dismisses Plaintiff's claims against the HRA.
a. City of New York
When a plaintiff sues a municipality under 42 U.S.C. § 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). In other words, to state a § 1983 claim against a municipality such as the City of New York, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997) (internal citations omitted).
In his amended complaint, Plaintiff does not plead that any policy, custom, or practice of the City of New York caused a violation of his rights. Moreover, the government has no general duty under the U.S. Constitution to protect an individual from harm. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-96 (1989). The Second Circuit has recognized two exceptions to this general rule. First, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 200. This affirmative duty to protect arises "not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id.
Second, the government may assume some obligation when it affirmatively creates or increases the danger. See Dwares v. City of N.Y., 985 F.2d 94, 98-99 (2d Cir. 1993). "The cases where the state-created danger theory was applied were based on discrete, grossly reckless acts committed by the state or state actors leaving a discrete plaintiff vulnerable to a foreseeable injury." Clarke v. Sweeney, 312 F. Supp. 2d 277, 291 (S.D.N.Y. Mar. 30, 2004). The state-created danger doctrine generally applies where state actors facilitate harm, such as "where police officers told skinheads that they would not prevent them from beating up protesters in the park . . . [or] where a prison guard told inmates that it was 'open season' on a prisoner, and the inmates beat up the prisoner." Matican v. City of N.Y., 524 F.3d 151, 155 (2d Cir. 2008).
The allegations of Plaintiff's amended complaint do not state a claim that the City of New York or its employees violated any duty owed to Plaintiff that arises under the U.S. Constitution. The government neither prevented Plaintiff from acting on his own behalf in obtaining alternative housing nor facilitated harm to him. See, e.g., Deshaney, 489 U.S. at 193. Plaintiff's § 1983 claims against the City of New York therefore fail to state a claim for a violation of his constitutional rights.
As set forth in the Court's order to amend, even if ICL is providing housing to Plaintiff, it is not acting under color of state law in doing so. See, e.g., George v. Pathways to Housing, Inc., No. 10-CV-9505 (ER), 2012 WL 2512964, at *4 (S.D.N.Y. June 29, 2012) ("It is well established that the provision of low-cost supportive housing is not a 'public function.'"). ICL and its employees are therefore not amenable to suit under 42 U.S.C. § 1983 for violations of the U.S. Constitution. --------
B. Supplemental Jurisdiction Over State Law Claims
Plaintiff makes claims governed by New York's landlord-tenant laws. Plaintiff alleges that his "new place needs to be fix[ed]" (Am. Compl. at 2) and that there is mold in his apartment that impairs his health. (Id. at 12.)
A district court may decline to exercise supplemental jurisdiction over state-law claims when it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Generally, "when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Having dismissed the federal claims over which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction over Plaintiff's state law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) ("Subsection (c) of § 1367 'confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'") (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)). Plaintiff's state law claims are therefore dismissed without prejudice to Plaintiff's refiling them in an appropriate court.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court declines under 28 U.S.C. § 1367(c) to exercise its supplemental jurisdiction over Plaintiff's state law claims.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: November 4, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge