Opinion
5:22-cv-00811 (LEK/TWD)
10-17-2022
PRISCILLA CHAVOUS, Plaintiff, v. HOUSING VISIONS UNLIMITED, INC., MARY A. MARRONE, and JENNIFER ST. MARKS, Defendants.
PRISCILLA CHAVOUS Plaintiff, pro se
PRISCILLA CHAVOUS Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge
The Clerk has sent to the Court for review a complaint filed by Priscilla Chavous (“Plaintiff”). (Dkt. No. 1.) Plaintiff has also moved to proceed in forma pauperis (“IFP”). (Dkt. No. 2.)
I. IFP APPLICATION
Plaintiff declares she is unable to pay the filing fee for this action. (Dkt. No. 2.) After reviewing Plaintiff's application, this Court finds she is financially eligible for IFP status. Therefore, Plaintiff's IFP application is granted for purposes of filing only.
Plaintiff should also note that although her IFP application has been granted, she will still be required to pay fees that she may incur in this action, including copying and/or witness fees.
II. SUFFICIENCY OF THE COMPLAINT
A. Legal Standard
This Court must conduct an initial review of complaints filed IFP. 28 U.S.C. § 1915(e). When conducting this review, “the court shall dismiss the case at any time if the court determines . . . the action . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted.” 28 U.S.C. §§ 1915(e)(2)(B)(i), (ii); see also Allen v. Stringer, No. 203953, 2021 WL 4472667, at *1 (2d Cir. Sept. 30, 2021). The Court must also dismiss a complaint, or portion thereof, 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); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding that a pro se litigant's complaint is to be held “to less stringent standards than formal pleadings drafted by lawyers”); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
“An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). “A claim is based on an indisputably meritless legal theory when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Id.
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555; see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “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). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
B. Summary of Complaint
On August 1, 2022, Plaintiff commenced this action against Housing Visions Unlimited Inc., Mary A. Marrone, Manager, and Jennifer St. Marks, Supervisor (collectively, “Defendants”). (Dkt. No. 1.) The complaint is a form-complaint pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Id. Plaintiff alleges she has cancer and glaucoma, and complains of the following conduct: “failure to make alterations to accommodate disability”, “retaliation”, and “other acts” in that “Housing Visions and its staff harass and intimidate. They want the apartment to get more rent. They are trying to evict me from the apartment. They do not identify themselves.” Id. at 4.
According to its website, Housing Vision Unlimited, Inc. (“Housing Visions”) is a not-for-profit Developer, General Contractor, and Property Manager with a mission to be the catalyst for substantiable positive change in neighborhoods through real estate development and community collaboration. Based out of Syracuse, New York, Housing Visions works throughout Upstate New York and Pennsylvania. Housing Visions owns and manages approximately 1,600 rental units for individuals and families, including special populations. See https://www.housingvisions.org (last visited Oct. 17, 2022).
In December 2009, Plaintiff moved into a “Housing Visions house . . . because they were offering incentives for rent to own.” Id. at 5. She paid $490.00 in rent, along with a $490.00 security deposit. Id. Specifically, “[t]he offer was if you pay rent consecutively for 10 years you will be able to own your 1st home with the security deposit interest as a down payment and Housing Vision will help with the process.” Id.
In May 2016, Supervisor St. Marks and the police searched Plaintiff's home when she was not present. Id. They found Plaintiff's “medical use” “cannabis trees” in a locked box, and she was arrested. Id. Supervisor St. Marks told the police “this was a landlord-tenant dispute.” Id. “This is when [Plaintiff] learned that they wanted [her] evicted. ” Id.
In December 2016, Plaintiff asked for a rent reduction. Id. Supervisor St. Marks told Plaintiff “that she would have to move to a smaller place. This was not the truth.” Id. In July 2021, Plaintiff put a “copy of a discontinuance letter from social security in the rent drop box.” Id. at 6. Nevertheless, her rent was increased. Id. Plaintiff complains she is “unable to communicate with management” because they do not answer her calls, and the office door is always locked. Id.
In April 2022, Plaintiff “got an infraction in the mail” from Manager Marrone. Id. Plaintiff was told to “take down” her greenhouse that had been “up” for about a year. Id. In June 2022, Plaintiff received another “infraction in the mail” because she would not allow maintenance to take down her greenhouse. Id. Later that month, she received another “infraction in the mail” signed by Defendant Marrone for “harassment of neighbor with violence.” Id. Yet it was the neighbor's sister who “threatened” Plaintiff's life. Id. Plaintiff is afraid to sleep, and her health has deteriorated. Id. “The police don't come!” Id.
Plaintiff claims “they” are “trying to remove” her from the Housing Visions property by issuing the infractions, “which can lead to eviction.” Id. “They used this tactic once before.” Id. “They” are trying to get Plaintiff to “leave and walk away from a house that [she] can live in forever as long as [she] pays rent on time.” Id. Additionally, trees are blocking the front windows, and there are no lights on the front porch or back porch. Id. at 8. She does not feel safe in her home. Id. She has to do all of her own repairs. Id. She is afraid of Housing Visions and their management, which changes often. Id. They do not wear nametags to identify themselves, and they have spare keys to her home. Id.
As for relief, Plaintiff wants to own her first home. Id. at 9. She wants to be compensated for the gardens that were destroyed, all of her repair work, and for pain and suffering because her health has declined due to the stress caused by Housing Visions and their management team. Id.
C. Analysis
Although Plaintiff utilizes a form complaint for violations of the ADA, she has failed to allege facts plausibly suggesting a claim for relief pursuant to the ADA. (Dkt. No. 1.)
The complaint refers to the ADA generally. Based on the facts alleged, Plaintiff cannot proceed with a claim under Title I of the ADA, which addresses employment discrimination, because she has not alleged that she was employed by Defendants. 42 U.S.C. § 12117; see also Mary Jo C. v. New York State Local Retirement Sys., 707 F.3d 144, 169 (2d Cir. 2013) (quoting Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360, n.1 (2001)) (“‘Title I of the ADA expressly deals with th[e] subject' of employment discrimination.”).
“Title II of the ADA proscribes discrimination against the disabled in access to public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009). To plead a violation of Title II of the ADA, a plaintiff must allege “(1) that [she] is a qualified individual with a disability; (2) that [she] was excluded from participation in a public entity's services, programs, or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to [her] disability.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003)) (internal quotation marks omitted). The public entities defined in the ADA are state or local governments and their instrumentalities. 42 U.S.C. § 12131(1). Private entities are not subject to the provisions of Title II even if they receive government funding. Brennan v. NCA Comp Inc., No. 3:22-CV-0127 (GTS/ML), 2022 WL 4290660, at *7 (N.D.N.Y. Apr. 25, 2022), report-recommendation adopted, 2022 WL 3097843 (N.D.N.Y. Aug. 4, 2022) (citations omitted). Further, “individuals cannot be held liable under the ADA.” Walker v. Flynn, No. 5:22-CV-0400 (GLS/ML), 2022 WL 2304169, at *6 (N.D.N.Y. June 27, 2022) (collecting cases), report-recommendation adopted, 2022 WL 2789355 (N.D.N.Y. July 15, 2022); see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (holding that Title II of the ADA does not provide for suits against individuals).
“Monetary damages are available under Title II of the ADA only where the plaintiff is able to ‘demonstrate intentional discrimination.'” Frank v. Sachem Sch. Dist., 84 F.Supp.3d 172, 186 (E.D.N.Y. 2015) (citing Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)), aff'd, 633 Fed.Appx. 14 (2d Cir. 2016) (summary order). To prevail on a claim for intentional discrimination under Title II, “a plaintiff must prove a policymaker's ‘deliberate indifference to the rights secured the disabled by those statutes,' in addition to the other elements of a Title II claim.” Gershanow v. City of Rockland, No. 11-CV-8174 (CS), 2014 WL 1099821, at *4 (S.D.N.Y. Mar. 20, 2014) (quoting KM ex rel. D.G. v. Hyde Park Cent. Sch. Dist., 381 F.Supp.2d 343, 358 (S.D.N.Y. 2005)).
Here, the complaint is devoid of factual allegations plausibly suggesting Defendants are public entities. Further, the complaint is devoid of factual allegations plausibly suggesting Plaintiff was unable to access public programs due to her disability, how her disability prevented her from accessing those programs, or what accommodations she sought and was denied by Defendants. Thus, Plaintiff has failed to state a claim upon which relief may be granted pursuant to Title II of the ADA.
Title III of the ADA prevents discrimination based on a disability in places of public accommodation. 42 U.S.C. § 12182. To plead a claim under Title III of the ADA, a plaintiff must allege “(1) that [she] is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against [her] by denying [her] a full and equal opportunity to enjoy the services defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). The term “public accommodation” includes “an inn, hotel, motel, or other place of lodging ....” 42 U.S.C. § 12181(7)(A). “However, the legislative history of the ADA clarifies that ‘other place of lodging' does not include residential facilities.” Alston v. Jarrell, No. 3:14-CV-132, 2015 WL 418153, at *4 (D. Conn. Jan. 30, 2015) (citation omitted); see also Reid v. Zackenbaum, No. 05-CV-1569, 2005 WL 1993394, at *4 (E.D.N.Y. Aug.17, 2005) (“Because [the plaintiff] is alleging discrimination in connection with a place of residence, he fails to state a claim that is subject to the ADA under the public accommodation provision of that act.”).
Title III provides a private right of action for injunctive relief but no right of action for monetary relief. 42 U.S.C. § 12188; see Krist v. Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012) (holding that Title III of the ADA “authorizes private actions only for injunctive relief, not monetary damages.”); Powell, 364 F.3d at 86 (“Monetary relief . . . is not available to private individuals under Title III of the ADA.”).
Here, the complaint does not allege facts plausibly suggesting that Defendants' actions constituted discrimination under Title III of the ADA or resulted in the discriminatory provision of services to Plaintiff. Thus, Plaintiff has failed to state a claim upon which relief may be granted pursuant to Title III of the ADA.
Title IV of the ADA does not appear to be applicable to Plaintiff's claims because Title IV prohibits disability discrimination in telecommunications. Genco v. Sargent & Collins LLP, 18-CV-0107, 2018 WL 3827742, at *3 n.5 (W.D.N.Y. June 4, 2018).
Finally, Title V of the ADA, sometimes referred to as the “retaliation provision,” also does not appear applicable because Plaintiff does not allege that she engaged in activity protected by the ADA, that Defendants were aware of that activity, or that Defendants took any adverse action against Plaintiff causally related to that protected activity. Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009); see also Constantine v. Merola, No. 20-CV-1012 (DNH/ML), 2020 WL 8450544, at *5 (N.D.N.Y. Nov. 6, 2020) (recommending dismissal of the plaintiff's Title V ADA claims where the complaint failed to allege that the plaintiff “engaged in any protected activity, that any [d]efendant knew that [p]laintiff was involved in the protected activity, or that any adverse decision or course of action taken by [d]efendants was causally connected to that protected activity.”), report-recommendation adopted, 2021 WL 392487 (N.D.N.Y. Feb. 4, 2021).
Title V “does not provide for punitive or compensatory damages under the ADA.” Jones v. Volunteers of Am. Greater New York, No. 20-CV-5581, 2022 WL 768681, at *6 n.8 (S.D.N.Y. Mar. 14, 2022) (citing Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010); Shipman v. New York State Office of Persons with Developmental Disabilities, No. 11-CV-2780, 2012 WL 897790, at *9 (S.D.N.Y. Mar. 12, 2012) (even in the retaliation context, “individuals cannot be held liable for money damages under the ADA in either their personal or official capacities.”), report and recommendation adopted, 2012 WL 3704837, at *3 (S.D.N.Y. Mar. 26, 2012) (money damages unavailable under the ADA)).
As a result, the Court recommends dismissing the complaint for failure to state a claim upon which relief may be granted.
While the Court is not unsympathetic to Plaintiff's alleged predicament, even when liberally construed, it appears the complaint sounds in state common law. (See, e.g., Dkt. No. 1 at 4 (“Housing Visions and its staff harass and intimidate. They want the apartment to get more rent. They are trying to evict me from the apartment. They do not identify themselves.”), 6 (“they” are “trying to remove me” from the Housing Visions property by issuing infractions, “which can lead to eviction.”). “Federal courts, unlike state courts, have no jurisdiction over landlord-tenant matters.” Burke v. Vonnard, No. 5:15-CV-1133 (MAD/TWD), 2015 WL 13744417, at *5 (N.D.N.Y. Sept. 28, 2015) (citations omitted), report-recommendation adopted, 2016 WL 3176653 (N.D.N.Y. June 7, 2016); see also Rosen v. Shore Towers Apartments, Inc., No. 11-CV-0752, 2011 WL 2550733, at *5 (E.D.N.Y. June 27, 2011) (noting that courts in this Circuit “routinely dismiss for lack of subject matter jurisdiction” claims concerning eviction) (collecting cases).
D. Opportunity to Amend
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant 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.” Branum v. Clark, 927 F.2d 698, 704-05 (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 amend 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).
This Court has serious doubts about whether Plaintiff can amend to assert any form of federal jurisdiction over the situation that she describes in her complaint. Nevertheless, in deference to Plaintiff's pro se status and out of an abundance of caution, the Court recommends affording Plaintiff an opportunity to file an amended complaint.
Should Plaintiff be permitted to file an amended complaint, and if she chooses to avail herself of an opportunity to amend, any amended complaint, which shall supersede and replace the original complaint in its entirety, must allege claims of misconduct or wrongdoing against each named defendant that Plaintiff has a legal right to pursue, and over which jurisdiction may properly be exercised. Any amended complaint filed by Plaintiff must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure.
WHEREFORE, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 2) is GRANTED solely for purposes of initial review; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has 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 . 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)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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. 6(a)(1)(C).
IT IS SO ORDERED.