Opinion
24-CV-1689 (LTS)
05-22-2024
JIMMY AVILA, Plaintiff, v. PROMESA, INC.; BASIC, INC.; LYMARIS ALBORS, Chief Executive Officer; AJA DOUGLAS, Quality Assurance Director, Supportive Housing; 1412 COL, LLC; CAREN ABATE, Director of Housing, NYCFO; OFFICER OF MENTAL HEALTH, Defendants.
ORDER OF DISMISSAL WITH LEAVE TO REPLEAD
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE:
Plaintiff, who is appearing pro se, brings this action under the court's federal question jurisdiction, alleging that Defendant violated his rights under the Americans with Disabilities Act of 1990 (“ADA”), the Rehabilitation Act, and state law. By order dated April 9, 2024, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses the complaint, but grants Plaintiff 30 days' leave to replead his claims in an amended complaint.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, 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 of the claims raised. 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). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings this action under the court's federal question jurisdiction, asserting claims under Title II of the ADA, Section 504 of the Rehabilitation Act, and state law. He names the following as Defendants: (1) Promesa, Inc.; (2) Basics, Inc.;(3) Lymaris Albors, whom Plaintiff identifies as “Chief Executive Officer” of an unspecified organization; (4) Aja Douglas, whom Plaintiff identifies as “Quality Assurance Director” of an unspecified organization; (5) “1412 Col, LLC,” which the Court understands to be 1412 College Avenue COL, LLC; (6) Caren Abate, Director of Housing for the New York City Field Office of the New York State Office of Mental Health (“NYSOMH”); and (7) the “New York State Department of Mental Health,” which the Court understands to be the NYSOMH.
Although Plaintiff does not state it in the complaint, the Court understands Basics, Inc. to also be known as Bronx Addiction Services Integrated Concept System, Inc.
The following allegations are taken from the complaint and the attached documents. Plaintiff has schizoaffective disorders, “periodontal disease and other disabilities.” (ECF 1, at 5.) On January 3, 2024, Plaintiff signed a relocation agreement lease with Defendant Basics “under duress,” which he maintains deprived him of “Supportive Housing Social Services” and restricted his rights as a tenant. Plaintiff alleges that Defendants denied him the “Warranty of Habitability” by “not providing and withholding essential services to [Plaintiff's] unit that the Defendants had a legal duty to provide.” (Id.) Specifically, Defendants: (1) cut off “essential services like electricity”; (2) refused to provide Plaintiff with keys to the apartment or provide him access to the apartment after January 9, 2024; (3) refused to correct “HPD Violations” in the apartment;(4) attempted to “break into” his apartment and change the locks; (5) used “physical force” against Plaintiff, after which he was treated at BronxCare Hospital, where Plaintiff states he was “denied doctors, medical accommodations, request for shower bars, social services, emotional support animal, etc.” (Id. at 5-6.) Plaintiff alleges that this last incident, the alleged assault, occurred on November 16, 2023, and involved an individual named Trevor Griffiths, who is not named as a defendant in this action.
Plaintiff attaches to the complaint a copy of an excerpt from a relocation agreement and one-year sublease agreement in which he appears to agree to end his lease or sublease with Basics, as to his previous apartment, and enter into another sublease with Basics, as to his current apartment. (ECF 1, at 24-28.) He also attaches a sublease agreement for his current apartment that is written on Acacia Network letterhead and that, while acknowledging that his apartment building is owned by “1412 College Avenue COL, LLC,” treats Basics as his landlord. (Id. at 2933.) This relocation agreement and Plaintiff's allegations that he signed it under duress are the subject of another action Plaintiff recently filed in this court. See Avila v. Acacia Network, Inc., No. 24-CV-0884 (LTS) (S.D.N.Y. filed Feb. 2, 2024).
Plaintiff attaches to the complaint a document from the New York City Department of Housing Preservation & Development (“HPD”), which, using check boxes, appears to indicate that on January 27, 2024, an HPD inspection of Plaintiff's apartment found “[n]o [e]lectricity” and “[o]ther” violations. (Id. at 51.) No further information about the alleged violations is provided on the form.
Plaintiff asserts that Defendants
discriminated against individuals with schizoaffective disorder (SZA, SZD) periodontal disease and other relevant conditions in violation of Title II of the ADA by prohibiting or otherwise limiting the full use of enjoyment of [Plaintiff's] unit and denying the [Plaintiff] keys to the unit and building and denying equal access and resources to the [Plaintiff] that is required under the OMH (Office of Mental Health) rules and regulations/guidelines thereby giving rise to the instant action.(Id. at 6.)
Plaintiff further alleges that, in retaliation for a settlement agreement in an “illegal lock out case” in Bronx County Housing Court, Defendants have not remedied the “HPD Violations” described in an attachment to the complaint. (Id. at 6-7; see id. at 51.) He also appears to allege that Defendants terminated his tenancy and “forc[ed] him to move.” (Id. at 7.)
Plaintiff appears to seek money damages and unspecified injunctive relief.
In addition to the attached documents described above, Plaintiff also attaches other documents to the complaint. One such document is a letter from Basics, stating that in January 2024, Plaintiff had agreed to abide by a Relocation Agreement and Program Site Safety Plan, but that due to “recent events, including assault of our staff and breaking and entering of a BASICS apartment,” Plaintiff would be discharged from the program. (Id. at 23.) The letter further states that as a result of Plaintiff's discharge from the program, Basics would be commencing a housing court proceeding against him regarding the apartment unit at 1412 College Avenue. (Id.)
Plaintiff also includes what appears to be a cover sheet for a housing action Plaintiff filed in the Civil Court of the City of New York, County of Bronx, on February 23, 2024. (Id. at 53).
DISCUSSION
A. Plaintiff's previous actions
Plaintiff has a long history of filing actions in this court related to supportive housing and his disabilities, including actions against some of the same defendants named in this case. See Avila v. Acacia Network, ECF 1:23-CV-10260, 6 (LTS) (S.D.N.Y. preliminary injunction denied Jan. 12, 2024) (asserting claims under the Fair Housing Act (“FHA”) that Abate, Douglas, and others retaliated against Plaintiff for securing a “settlement stipulation” in a state housing court matter); Avila v. Acacia Network, Inc., ECF 1:23-CV-7834, 1 (LTS) (S.D.N.Y. filed Sept. 1, 2023) (asserting, inter alia, claims under the FHA and ADA that Acacia Network and Trevor Griffith discriminated against him and failed to accommodate his disability at a previous apartment); Avila v. Acacia Network, ECF 1:22-CV-7657, 8 (LTS) (S.D.N.Y. May 9, 2023) (dismissing complaint, after Plaintiff failed to amend his pleading as directed, because he failed to provide facts showing that Defendants discriminated against him on the basis of a disability); Avila v. Sun River Health, Inc., ECF 1:22-CV-9221, 7 (LTS) (S.D.N.Y. May 24, 2023) (same); Avila v. Basics, Inc., ECF 1:17-CV-8916, 6 (JMF) (S.D.N.Y. Nov. 20, 2017) (denying request for preliminary injunctive relief and dismissing complaint for failure to state a plausible claim for relief under the FHA). In another recent case, Avila v. Acacia Networks, Inc., No. 24-CV-0884 (LTS) (S.D.N.Y. filed Feb. 2, 2024), Plaintiff brings claims under the FHA, ADA, Rehabilitation Act, and state law, arising from the terms of the relocation agreement that he attaches to this complaint. In that action, he sues: (1) Acacia Network; (2) Trevor Griffiths; (3) Aja Douglas, (4) NYSOMH; (5) Kim Benatar, Deputy Director of Housing at the NYSOMH; (6) “NYC Adult Protective Service,” which the Court understands to be the Adult Protective Services Program (“APS”), a program of the New York City Department of Social Services's Human Resources Administration; (7) Thomas Glenoy, whom Plaintiff describes as an “APS Senior Supervisor,” and (8) 1412 College Avenue, LLC. By order dated April 15, 2024, the Court dismissed the action, but granted Plaintiff 30 days' leave to replead his claims in an amended complaint. ECF 1:24-CV-0884, 4. To the extent Plaintiff is asserting claims in this action against Douglas, NYSOMH, and 1412 College Avenue, LLC, arising from the terms of the relocation agreement, that he has previously raised in No. 24-CV-0884, the Court dismisses those claims without prejudice to Plaintiff litigating them, as permitted, in No. 24-CV-0884. See Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (“As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit.... Because of the obvious difficulties of anticipating the claim or issue-preclusion effects of a case that is still pending, a court faced with a duplicative suit will commonly[,] [among other things,] . . . dismiss it without prejudice....”); see also Mackey v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 112 Fed.Appx. 89, 91 (2d Cir. 2004) (summary order) (citing Curtis, 226 F.3d at 138, and affirming the district court's dismissal without prejudice of those claims within an action that were duplicative of claims in another pending action, while the district court adjudicated other claims).
See also Avila v. Sun River Health, Inc., ECF 1:22-CV-9254, 6 (LTS) (S.D.N.Y. Feb. 10, 2023) (dismissing complaint as duplicative); Avila v. 1212 Grant Realty, LLC, ECF 1:18-CV-7851, 130 (LGS) (GWG) (S.D.N.Y. Apr. 26, 2021) (dismissing action under stipulated settlement); Avila v. Slaughter, ECF 1:15-CV-3188, 20 (LGS) (S.D.N.Y. July 28, 2015) (voluntarily dismissing complaint).
B. Claims under the Rehabilitation Act
The Court understands the complaint to be asserting claims for discrimination and retaliation under the Rehabilitation Act against Promesa, Basics, 1412 College Avenue LLC, and the NYSOMH.
Plaintiff may also be attempting to assert Rehabilitation Act claims against Albors, Douglas, and Abate. Plaintiff, however, cannot assert Rehabilitation Act claims for damages against individual defendants. See Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Insofar as [the plaintiff] is suing the individual defendants in their individual capacities, neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits....”); J.L. on behalf of J.P v. New York City Dep't of Educ., 324 F.Supp.3d 455, 467 (S.D.N.Y. 2018) (“There is no individual liability under the ADA or § 504 of the Rehabilitation Act.”).
1. Discrimination claims
Under the Rehabilitation Act:
[n]o otherwise qualified individual with a disability in the United States . . . 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C. § 794(a).
For the purposes of the Rehabilitation Act, the term “individual with a disability” incorporates by reference the definition of “disability” in the ADA. 29 U.S.C. § 705(20)(B). Under the ADA, a “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)-(C).
To state a claim under the Rehabilitation Act, the plaintiff must allege that: (1) the plaintiff is a qualified individual with a disability; (2) the defendant is subject to the Rehabilitation Act; and (3) the plaintiff was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant, by reason of the plaintiff's disability. Shomo v. City of New York, 579 F.3d 176, 185 (2d Cir. 2009) (quoting Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). To show that the defendant is subject to the Rehabilitation Act, “a plaintiff must show that the defendant[ ] [is either a federal executive agency, the United States Postal Service (“USPS”), or] receive[s] federal funding.” Henrietta D., 331 F.3d at 272; see 29 U.S.C. § 794(a).
Following the ruling of the Supreme Court of the United States in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009), in which it held that “age discrimination must be the ‘but-for' cause of an adverse employment action for . . . liability to attach” under the Age Discrimination in Employment Act of 1967 (“ADEA”), the United States Court of Appeals for the Second Circuit has not decided whether “but-for” causation or “mixed motive” causation is required to state a non-employment discrimination claim under the Rehabilitation Act or Title II of the ADA. Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir. 2010) (discussion in the context of Title II of the ADA); see Wright v. N.Y. State Dep't of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (standards under Title II of the ADA and the Rehabilitation Act “are generally the same”). But cf. Natofsky v. City of New York, 921 F.3d 337, 345 (2d Cir. 2019) (holding that “but-for” causation applies to employment discrimination claims brought under the Rehabilitation Act).
Plaintiff alleges no facts showing that Promesa, Basic, or 1412 College Avenue LLC, all of which appear to be private entities, or the NYSOMH, a New York State agency,receive federal funding. Even if any of those defendants has received federal funding, however, Plaintiff's allegations are insufficient to show that any of those defendants denied him the opportunity to participate in or benefit from its services, programs, or activities, or has otherwise discriminated against him, by reason of his disability. Thus, Plaintiff has failed to state a claim of discrimination under the Rehabilitation Act against Promesa, Basics, 1412 College Avenue LLC, and the NYSOMH, and the Court dismisses those claims against those defendants for that reason. See 28 U.S.C. § 1915(e)(2)(B)(ii).
A showing that the NYSOMH receive federal funding is not only necessary in order to state a claim of discrimination against it under the Rehabilitation Act; it is also a requirement to show the State of New York's waiver of Eleventh Amendment immunity as to such claims. Cf. Matagrano v. N.Y. State Dep't of Corrs. & Cmty. Supervision, 9:19-CV-0763, 2020 WL 7338586, at *11 n.18 (N.D.N.Y. Dec. 14, 2020) (“New York's acceptance of federal funds on behalf of [the NYS]OMH . . . waives its Eleventh Amendment defense to Plaintiff's Rehabilitation Act claims against” that entity).
The Court grants Plaintiff leave to file an amended complaint in which he alleges facts sufficient to state a claim of discrimination against these defendants under the Rehabilitation Act.
2. Retaliation claims
To the extent that Plaintiff asserts claims of retaliation under the Rehabilitation Act against Promesa, Basics, 1412 College Avenue LLC, and the NYSOMH, the Court must dismiss those claims. To state such a claim, a plaintiff must allege that: “(i) [the] plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Natofsky, 921 F.3d at 353 (internal quotation marks and citation omitted). In this context, “[w]ith respect to causation, a plaintiff must prove ‘that “but for” the disability, the adverse action would not have been taken.'” Tafolla v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (quoting Natofsky, 921 F.3d at 347). In addition, as with a discrimination claim brought under the Rehabilitation Act, the plaintiff must show that the defendant is either a federal executive agency, the USPS, or receives federal funding. Daly v. Westchester Cnty. Bd. of Legislators, No. 19-CV-4642 (PMH), 2023 WL 4896801, at *4, 7-8 (S.D.N.Y. Aug. 1, 2023), appeal pending, No. 23-1220 (2d Cir.); see 29 U.S.C. § 794(a).
Plaintiff appears to allege that Defendants retaliated against him for his state court litigation by cutting off his electricity, refusing to provide keys to his apartment, and changing the locks on his apartment. Even if the Court assumes that Promesa, Basics, 1412 College Avenue LLC, and the NYSOMH receive federal funding; that Plaintiff engaged in activity protected by the Rehabilitation Act; that these defendants were aware of this activity; and that the conditions of which Plaintiff complains could be considered adverse actions, Plaintiff does not allege any facts suggesting that there was a causal connection between the adverse action and the protected activity. In fact, the only state court action about which Plaintiff provides any factual details appears to have been filed on February 23, 2024 (see ECF 1, at 53), a month after Plaintiff reported to HPD that his electricity was turned off (see id. at 51), therefore undermining Plaintiff's claim that Defendants turned his electricity in retaliation for his lawsuit. The Court therefore dismisses Plaintiff's claims of retaliation under the Rehabilitation Act for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), but grants Plaintiff leave to replead these claims against these defendants in an amended complaint in which he alleges facts sufficient to state such a claim.
C. Claims under Title II of the ADA
Plaintiff also asserts claims under Title II of the ADA. Title II forbids discrimination against persons with disabilities in, among other areas of public life, public services, programs, and activities. Tennessee v. Lane, 541 U.S. 509, 516-17 (2004). It provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Under the ADA, a “public entity” includes “(A) any State or local government; [and] (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(A)-(B). The Court construes these claims as asserted against NYSOMH only, since the other defendants are considered to be private entities not subject to the ADA. See id.; Matagrano, 2020 WL 7338586, at *12.
1. Discrimination claims against NYSOMH
The standard to state a claim of discrimination under Title II of the ADA is the same as the standard to state a claim of discrimination under the Rehabilitation Act, though without the additional requirement that the defendant must be a federal executive agency, the USPS, or receive federal funding. See Shomo, 579 F.3d at 185; Henrietta D., 331 F.3d at 272. Here, Plaintiff's allegations are insufficient to show that NYSOMH denied him the opportunity to participate in or benefit from its services, programs, or activities, or has otherwise discriminated against him, by reason of his disability. The Court therefore dismisses Plaintiff's claims of discrimination under Title II of the ADA against the NYSOMH for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). As above, the Court grants Plaintiff leave to replead these claims in an amended complaint in which he alleges facts sufficient to state such a claim against this defendant.
“[I]f a plaintiff cannot state a Title II [ADA] claim [against a state agency], the court's [Eleventh Amendment] sovereign immunity inquiry is at an end.” Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013). Thus, if Plaintiff fails to state a claim of discrimination against the NYSOMH, it appears that such a claim is also precluded by Eleventh Amendment sovereign immunity. See id. (quoting United States v. Georgia, 546 U.S. 151, 159 (2006)).
2. Retaliation claims against NYSOMH
The Court must dismiss Plaintiff's claims of retaliation under the ADA against the NYSOMH. The ADA's antiretaliation provision provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful [under the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). The pleading requirements for a claim of retaliation under the ADA are the same as those for claims of retaliation under the Rehabilitation Act (without the requirement that the defendant be a federal executive agency, the USPS, or receive federal funding). See Tafolla, 80 F.4th at 12526; Natofsky, 921 F.3d at 353; Currytto v. Doe, No. 3:18-CV-1392, 2019 WL 2062432, at *8 (D. Conn. May 9, 2019) (“The same standards apply to a claim of retaliation under . . . the Rehabilitation Act as under the ADA.” (citing Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002))). For the same reasons that the Court dismissed Plaintiff's claims of retaliation under the Rehabilitation Act, the Court dismisses Plaintiff's claims of retaliation under the ADA against the NYSOMH for failure to state a claim on relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The Court, however, grants Plaintiff leave to replead these claims against NYSOMH in an amended complaint in which he alleges facts sufficient to state a such a claim against this defendant.
“The law is not presently settled on the issue of whether Congress validly abrogated [Eleventh Amendment] sovereign immunity for retaliation claims under [the ADA] when such claims are predicated on . . . claims [under Title II of the ADA].” Puccinelli v. S. Conn. State Univ., No. 3:21-CV-0763, 2023 WL 4838291, at *6 n.8 (D. Conn. July 28, 2023); Constantine v. Merola, No. 1:20-CV-1012, 2020 WL 8450544, at *5 n.8 (N.D.N.Y. Nov. 6, 2020), report & recommendation adopted sub nom., Constantine v. NYS Deaf Cmty., No. 20-CV-1012, 2021 WL 392487 (N.D.N.Y. Feb. 4, 2021).
D. Claims under state law
Plaintiff asserts claims under state law for retaliation under N.Y. R.P.P. § 233-B and claims for breach of contract. 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 of which the Court has original jurisdiction, the Court declines to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting. 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))).
E. Motion for preliminary injunctive relief
Plaintiff has filed an application for preliminary injunctive relief. (ECF 1, at 12-21; ECF 3.) To obtain such relief, Plaintiff must show: (1) that he is likely to suffer irreparable harm and (2) either (a) a likelihood of success on the merits of his case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. See UBS Fin. Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted); Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and citation omitted).
As set forth above, Plaintiff fails to state a claim for relief under the Rehabilitation Act or the ADA. The Court therefore finds that Plaintiff has not, at this time, shown: (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. Accordingly, Plaintiff's request for preliminary injunctive relief is denied without prejudice.
LEAVE TO AMEND GRANTED
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state valid claims under the Rehabilitation Act and ADA, the Court grants Plaintiff 30 days' leave to amend his complaint to detail his claims.
If Plaintiff does not file an amended complaint within the time allowed, the Court will direct the Clerk of Court to enter judgment in this action.
CONCLUSION
Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(ii), with 30 days' leave to replead.
To the extent Plaintiff is asserting in this action claims against Douglas, NYSOMH, and 1412 College Avenue, LLC, arising from the terms of the relocation agreement that he has previously raised in No. 24-CV-0884, the Court dismisses those claims without prejudice to Plaintiff litigating them, as permitted, in No. 24-CV-0884.
Plaintiff's request for preliminary injunctive relief is denied without prejudice. (ECF 3.) The Court declines to exercise supplemental jurisdiction of Plaintiff's claims under state law. See 28 U.S.C. § 1367(c)(3).
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 IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Court directs the Clerk of Court to hold this matter open on the docket until a civil judgment is entered.
SO ORDERED.