Opinion
98 Civ. 8034 (KNF)
November 6, 2003
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiff Herbert Hart ("Hart") brings this action pro se pursuant to 42 U.S.C. § 1983. Hart alleges that defendant Westchester County Department of Social Services ("WCDSS") deprived him of property without due process of law in violation of the Fourteenth Amendment by reducing his public assistance grant without giving him proper notice or an effective opportunity to be heard, and by failing to give him an expedited fair hearing after it denied his application for emergency assistance.
Before the Court is defendant's motion to dismiss made pursuant to Rules 12(b)(6) and 12(d) of the Federal Rules of Civil Procedure. WCDSS contends that the complaint should be dismissed for failure to state a claim upon which relief may be granted because: (i) the plaintiff received timely and adequate notice of the decision to reduce his public assistance grant and an effective opportunity to be heard on this matter; and (ii) insofar as the plaintiff alleges a constitutional violation based on the defendant's failure to schedule an expedited fair hearing, WCDSS is not a proper party to this action because only the New York State of Department of Social Services ("NYSDSS") is authorized to implement the fair hearing process in New York. The defendant also requests a preliminary hearing pursuant to Fed.R.Civ.P. 12(d). Plaintiff opposes the motion to dismiss; it is addressed below.
II. BACKGROUND
Hart was a recipient of public assistance from 1989 until 1996. On May 2, 1995, Hart, by signing a "landlord statement" and a "shelter verification," entered into a voluntary agreement with WCDSS, whereby his public assistance rental allowance was restricted to $350 per month. The agreement also provided that Hart's rent would be paid directly to the owner of the property in which Hart's residence was located, namely, Greenow Realty Corporation ("Greenow"). At the time, Hart was residing at 86 Main Street, Apartment 4, Yonkers, New York. Thereafter, WCDSS notified Hart of its acceptance of his application for public assistance for the period May 1, 1995, through April 30, 1996. The notice advised Hart that he would receive cash assistance in the amount of $58 per month, a rental allowance, as noted, in the amount of $350 per month, food stamps and medical assistance.
Under title 18 of the Codes, Rules and Regulations of the State of New York ("N.Y.C.R.R."), public assistance is defined as "aid to dependent children, home relief, emergency assistance to aged, blind or disabled persons [and] emergency assistance to needy families. . . ." 18 N.Y.C.R.R. § 358-2.17.
In August 1995, Hart applied for federal social security income ("SSI") benefits and was advised that the Social Security Administration would notify WCDSS when Hart's SSI payments commenced. Hart began receiving SSI payments, in the amount of $350 per month, in October 1995. In an affidavit submitted in support of the instant motion, Wei Au Young ("Au Young"), an eligibility examiner employed by the defendant, avers that, when he determined, from a review of agency records, that Hart had begun receiving SSI benefits, he reassessed the amount of public assistance to which Hart was entitled and, on November 27, 1995, notified Hart of the impending reduction in his public assistance grant by means of a "Notice of Intent to Change Benefits." The last line of the notice advises: "You have the right to appeal this decision. Be sure to read the back of this notice on how to appeal." Au Young states that he mailed two copies of the notice to Hart at his Yonkers residence and placed a third copy of the notice in Hart's WCDSS case file. According to Au Young, Hart, like all claimants, was provided two copies of the notice so that he could submit a request for a fair hearing to NYSDSS on the back of one of the copies and retain the other copy for his records.
On December 1, 1995, WCDSS made a direct rental payment to Greenow on Hart's behalf in the amount of $350. On December 15, 1995, Hart's public assistance grant was reduced by the amount of his SSI benefits, that is, from $408 to $58. Thereafter, beginning on January 1, 1996, WCDSS began remitting $58 per month in rental payments to Greenow.
Hart claims that he did not receive notice of the reduction in his public assistance grant, or the information on the back of the notice form concerning how to appeal an agency decision, prior to the date on which his public assistance grant was reduced. Specifically, in his complaint, Hart asserts that he did not learn of the reduction in his public assistance grant until March 1996, when he received a notice of eviction from Greenow. However, in papers submitted in opposition to the instant motion, Hart states that he received a copy of the November 27, 1995 notice in January 1996, when he met with his WCDSS caseworker, Habeeb Mohammed ("Mohammed"). According to Hart, although he received the subject notice, he did not receive a "notice of fair hearing at this time as described in the Au Young affidavit."
For his part, Mohammed, in an affidavit submitted in support of the instant motion, denies having met with Hart in January 1996 and asserts that, if he had given Hart a copy of the November 27, 1995 notice at that time, he would have insisted that Hart sign it.
In his opposition papers, Hart claims that, upon receiving notice of the reduction of his public assistance grant in January 1996, he requested both an agency conference and a fair hearing, but was denied an agency conference and received no response to his fair hearing request. However, according to the defendant, evidence that Hart did receive a response to his fair hearing request is a notice, issued by NYSDSS, stating that a fair hearing had been scheduled for March 22, 1996, in response to a letter of request from Hart dated January 31, 1996. The notice states that one purpose of the fair hearing is to address the reduction in the amount of plaintiff's public assistance grant. The defendant contends that "[i]nasmuch as NYSDSS could only have obtained this information, which mirrors that contained in the November 27, 1995 [n]otice, from [p]laintiff, it demonstrates that he received [that] [n]otice and forwarded it to NYSDSS when he requested a fair hearing." The defendant also claims that Hart was not denied an agency conference, as alleged, and, indeed, did not even request such a conference.
"At any reasonable time before the date of [a public assistance recipient's] fair hearing, [the recipient] may request that the agency schedule an agency conference before [the recipient's] fair hearing to review the agency decision for which [the recipient] has requested the fair hearing. . . ." 18 N.Y.C.R.R. § 358-3.8.
"Fair hearing means a formal procedure provided by the department upon a request made for an applicant or recipient to determine whether an action taken or failure to act by a social services agency was correct." 18 N.Y.C.R.R. § 358-2.12.
On February 12, 1996, Hart learned that his case had been selected for an ongoing eligibility review. In connection with the eligibility review, a home visit was conducted on March 11, 1996. During the home visit, Hart informed a WCDSS representative(s) that, for several months, Greenow had not received the portion of plaintiff's rent for which WCDSS was responsible, that is, $58 per month. Meanwhile, Greenow had already commenced an action against Hart for non-payment of rent in the amount of $919. On March 21, 1996, Hart was served a notice of eviction and a judgment ordering him to vacate his residence by March 27, 1996.
Hart failed to appear at the fair hearing that had been scheduled for March 22, 1996. On March 27, 1996, Hart informed Mohammed that he was about to be evicted from his residence and requested emergency assistance in the form of payment of his rental arrears. Hart's request for emergency assistance was denied the following day. In denying the request, WCDSS advised Hart that "your rent is $350.00 and your total welfare grant is only $58 after deduction of your SSA of $350 per month. Dept. of Social Services, under these circumstances, cannot capture your future rent for payment directly to the landlord." Later that day, March 28, 1996, Hart was evicted from his residence and rendered homeless.
On April 1, 1996, Hart requested an expedited fair hearing on the issue of the denial of his request for emergency assistance. The request was directed to the NYSDSS. Despite the fact that Hart was homeless, no hearing was scheduled until May 21, 1996. NYSDSS subsequently notified Hart that the fair hearing scheduled for May 21, 1996, had been rescheduled for July 3, 1996. On the adjourned date, Hart withdrew his request for a fair hearing for reasons not revealed in the record of this case. Hart commenced the instant action on January 23, 1998.
III. DISCUSSION
Standard of Review for Motion to DismissA court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins, v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). Furthermore, the court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits."Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995). Additionally, when a plaintiff is proceeding pro se, the courts are to construe the complaint liberally. See, e.g.,Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). Section 1983
"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983."Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Hart contends that officials of WCDSS were acting under color of state law when they deprived him of his property rights without due process of law. This element of Hart's § 1983 claim is not in dispute. WCDSS, which has been designated a local social services district, is authorized by NYSDSS to administer and enforce public assistance programs pursuant to applicable state and federal laws. Therefore, officials of WCDSS were acting under color of state law at the time of the events at issue in this case.
Hart also claims that the defendant deprived him of his property without due process in violation of the Fourteenth Amendment by reducing his public assistance grant without giving him proper notice or an opportunity to be heard, and by failing to give him an expedited hearing after it denied his application for emergency assistance. This element of Hart's § 1983 claim is addressed below.
Due Process Claim: Reduction of Public Assistance
In a § 1983 claim for denial of procedural due process, the two threshold questions are "whether the plaintiff possessed a liberty or property interest protected by the United States Constitution or federal statutes and, if so, what process was due before the plaintiff could be deprived of that interest." Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54). In order "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it . . . [h]e must, instead, have a legitimate claim of entitlement to it." McMenemy v. City of Rochester, 241 F.3d 279, 286 (2d Cir. 2001) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709). Persons who are qualified to receive welfare benefits have a legitimate claim of entitlement to such benefits. See Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S.Ct. 1011, 1017 (1970); Reynolds v. Giuliani, 35 F. Supp.2d 331, 340-341 (S.D.N.Y. 1999).
In this case, the defendant acknowledges that Hart has a legitimate claim of entitlement to his welfare benefits and, therefore, a property interest in those benefits. However, the defendant denies that Hart was deprived of those benefits without due process of law.
"[O]nce it is determined that the Due Process Clause applies, the question remains what process is due." Cleveland Bd. of Educ. v. Loudermill 470 U.S. 532, 541, 105 S.Ct. 1487, 1493 (1985) (quotingMorrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600) (internal quotation marks omitted). It is an essential principle of due process that "a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Id. at 542, 1493 (quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656). Thus, the "root requirement" of the Due Process Clause is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest."Id. (emphasis in original).
When the state proposes to terminate public assistance to a recipient of welfare benefits, "only a pre-termination evidentiary hearing provides the recipient with procedural due process." Goldberg, 397 U.S. at 264, 90 S.Ct. at 1018. The pre-termination hearing need not take the form of a judicial or quasi-judicial proceeding, but must be held "at a meaningful time and in a meaningful manner." Id. at 267, 1020. In order for a hearing to be held at a meaningful time and in a meaningful manner, a recipient of welfare benefits must have "timely and adequate notice detailing the reasons for a proposed termination. . . ."Richardson v. Kelaher, No. 97 Civ. 0428, 1998 WL 812042, at *5 (S.D.N.Y. Nov. 19, 1998) (quoting Goldberg, 397 U.S. at 267-68, 90 S.Ct. at 1020). Timely and adequate notice "plays a crucial role in affording a welfare recipient an effective opportunity to be heard."Id. at *6.
In an earlier ruling in this case, the court noted that the standards enunciated in Goldberg may be applied where, as here, the plaintiff's public assistance benefits were not terminated, but the plaintiff was rendered homeless by the reduction in his benefits.See Hart v. Westchester County Dep't of Social Servs., 160 F. Supp.2d 570, 575 (S.D.N.Y. 2001).
The Code of Federal Regulations ("C.F.R.") provides that, in the context of public welfare, a notice is timely when it is mailed at least ten (10) days before the date upon which the proposed action will become effective. See 45 C.F.R. § 205.10(a)(4)(i)(A); see also 18 N.Y.C.R.R. § 358-2.23. An adequate notice is defined as:
Both the federal government and the State of New York have promulgated regulations modeled on the due process principles set forth in Goldberg. See Richardson, 1998 WL 812042, at *5. The federal notice and hearing requirements are located at title 45 of the C.F.R. The regulatory provisions adopted by New York State, which are similar but not identical to those set forth in the C.F.R. may be found at 18 N.Y.C.R.R. § 358. See id.
a written notice that includes a statement of what action the agency intends to take, the reasons for the intended agency action, the specific regulations supporting such action, explanation of the individual's right to request an evidentiary hearing (if provided) and State agency hearing, [and] the circumstances under which assistance is continued if a hearing is requested. . . .45 C.F.R. § 205.10(a)(4)(i)(B).
The analogous provision of the N.Y.C.R.R. states that an "adequate notice means a notice of action which sets forth [inter alia] . . . the procedure for requesting an agency conference or fair hearing. . . ." 18 N.Y.C.R.R. § 358-2.2(a)(6).
WCDSS claims that it provided Hart with timely and adequate notice of its decision to reduce the amount of his public assistance benefits, and an effective opportunity to be heard on this issue, in accordance with applicable federal and state law. With respect to the requirement of timeliness, although WCDSS eligibility examiner Au Young maintains that two copies of the subject notice were mailed to Hart on November 27, 1995, the relevant documentary evidence, that is, the notice issued by the NYSDSS announcing that a fair hearing had been scheduled in Hart's case for March 22, 1996, establishes only that Hart had received notice of the reduction as of January 31, 1996. Thus, whether the subject notice was sent ten (10) days prior to the date on which the proposed reduction in benefits would become effective, as required by law, is a question of fact. Therefore, under the circumstances, the defendant has not shown that plaintiff can prove no set of facts in support of his claim that notice was not sent timely.
As noted above, in the context of public welfare, due process requires that notice of a reduction in public assistance benefits must be adequate as well as timely. In this case, the relevant documentary evidence, namely, the November 27, 1995 notice of the proposed reduction in Hart's benefits, informs Hart of the action the agency intended to take, the reasons for the action, the specific regulations supporting the action, and his right to appeal the agency's decision to take the action. In addition, the back of the notice form explains how to appeal the agency's decision, including, inter alia, how to request a fair hearing. Thus, in its complete form, the notice satisfies the requirements for adequacy as set forth in the pertinent federal and state regulations.
Hart claims that, although he received a copy of the notice in January 1996, he did not receive a "notice of fair hearing" at that time. Construed liberally, plaintiffs claim appears to mean that he did not receive that portion of the notice form that explained how to appeal an agency decision by requesting a fair hearing. At the same time, it should be noted that, since the evidence demonstrates that Hart sent a letter to NYSDSS on January 31, 1996, requesting a fair hearing, it is reasonable to infer that he had been informed previously, in some manner, about the procedure for doing so. However, given the absence of conclusive evidence demonstrating that Hart received this information from the defendant as part of the notice of the change in his public assistance benefits, the Court finds that dismissal of plaintiff's claim concerning the adequacy of that notice is not warranted. Accordingly, the defendant's motion to dismiss Hart's claim, that the defendant deprived him of property without due process of law by reducing his public assistance grant without giving him proper notice, is denied.
In this regard, the Court takes note of the conclusion reached in a previous ruling in this case concerning the issue of the adequacy of notice. In that ruling, the court stated: "[B]ecause WCDSS did not provide the back of the notice, this Court has no way of determining whether Hart received adequate information about his right to appeal."Hart, 160 F. Supp.2d at 576. The court's denial of the defendant's motion for summary judgment with respect to Hart's claim concerning the reduction of his public assistance grant was based in part on the inadequacy of the notice form. See id.
In papers submitted in opposition to the instant motion, Hart alleges that when he was notified of the reduction in his benefits, he requested an agency conference and a fair hearing, but was denied an agency conference and received no response to his request for a fair hearing. The defendant asserts that plaintiff was not denied an agency conference concerning the reduction in his benefits and, furthermore, never requested such a conference. The defendant also contends that, even if Hart was denied an agency conference, he did not suffer a violation of a constitutional right thereby, because due process in the public welfare context does not require that an applicant be afforded an agency conference. The defendant also asserts that Hart's claim that he received no response to his request for a fair hearing is unsupported by the evidence.
There is no documentary evidence indicating whether Hart requested an agency conference to address the matter of the reduction in his public assistance benefits, nor is there any evidence indicating whether that request was denied. Information concerning an applicant's right to request an agency conference, and the procedure for doing so, is provided on the back of the notice of change in benefits form. As noted above, the record does not demonstrate that Hart ever received that portion of the notice form. In any event, since the defendant's motion to dismiss Hart's claim concerning the reduction in his public assistance benefits is denied on the ground that notice of the reduction was neither timely nor adequate, the Court need not address the matter of the purported denial of an agency conference or whether, in this context, such a denial would rise to the level of a constitutional violation. As for Hart's claim that he did not receive a response to his request for a fair hearing in connection with the reduction in his public assistance benefits, the defendant is correct in stating that this claim is contradicted by the record in this case.
Due Process Claim: Denial of Emergency Assistance
A review of the record in this case reveals that, with respect to the denial by the defendant of plaintiff's request for emergency assistance at the time of his eviction from his residence, plaintiff has raised the following claims: (1) the defendant wrongly denied him emergency assistance; (2) the defendant wrongly denied him an agency conference concerning the denial of emergency assistance; (3) the defendant failed to schedule an expedited fair hearing following the denial of his request for emergency assistance; and (4) the defendant failed wrongly to continue public assistance benefits, or to comply with a directive from NYSDSS instructing it to continue public assistance benefits, until after the fair hearing decision had been made.
In the instant motion to dismiss, the defendant has addressed the third of these claims: that the defendant failed improperly to schedule a timely or expedited fair hearing following the denial of Hart's application for emergency assistance. In urging the Court to dismiss this claim, the defendant argues that the allegation is not properly brought against WCDSS, but, instead, should be brought against NYSDSS, because only that entity is authorized to implement the fair hearing process in New York.
The defendant is correct that, in New York, the fair hearing process is administered by NYSDSS. See N.Y.C.R.R. § 358-2.12 ("Fair hearing means a formal procedure provided by the department upon a request made for an applicant to determine whether an action taken or failure to act by a social services agency was correct.") and § 358-2.10 (defining "department" as the NYSDSS). A local social services agency, such as the defendant, is merely a party to a fair hearing, along with the person for whom the fair hearing is requested. See N.Y.C.R.R. § 358-2.16 ("Parties to a fair hearing means the person for whom a fair hearing is requested and the social services agency or agencies whose decision, action or failure to act is subject to review at the fair hearing."). Thus, as defendant contends, Hart's claim that he was improperly denied an expedited fair hearing following the denial of his request for emergency assistance should have been made against NYSDSS, rather than WCDSS. Consequently, the defendant is correct that this claim fails to state a claim upon which relief may be granted.
Given plaintiff's pro se status, however, the Court has determined that it would be appropriate to give plaintiff an opportunity to seek to amend his complaint to add NYSDSS as a defendant, pursuant to Fed.R.Civ.P. 15(c)(3). Granting plaintiff such an opportunity is in keeping with Fed.R.Civ.P. 15(a), which advises that leave to amend a pleading should be freely given when justice so requires. Accordingly, Hart's claim that WCDSS failed wrongly to schedule an expedited fair hearing in connection with the denial of emergency assistance and that, as a result, he suffered a violation of his constitutional right to due process, is dismissed without prejudice. Depending on the outcome of a motion to amend the complaint, should plaintiff determine to make such a motion, the claim may be subject to renewal.
Furthermore, the Court notes that the defendant is a proper party to this action with respect to the other claims raised by the plaintiff in connection with the denial of his request for emergency assistance, namely, claims (1), (2) and (4) above. Those claims, brought pursuant to 42 U.S.C. § 1983 and alleging the deprivation of a constitutional right, remain pending. Rule 12(d)
Fed.R.Civ.P. 12(d) provides that:
Preliminary Hearings. The defenses specifically enumerated (1)-(7) in [Rule 12(b)], whether made in a pleading or by motion, and the motion for judgment mentioned in [Rule 12(c)] shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
The Second Circuit has stated that "[e]very circuit to consider this issue has determined that the `hearing' requirements of Rule 12 and Rule 56 do not mean that an oral hearing is necessary, but only require that a party be given the opportunity to present its views to the court."Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998). Finding that, on motions to dismiss in civil cases, no oral hearing is required by the Due Process Clause, the court concluded that "the decision whether or not to hold an oral hearing on a motion to dismiss lies in the sound discretion of the trial court." Id.
The defendant seeks a preliminary hearing with respect to its motion to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(d). However, the Court is not persuaded that a preliminary hearing is necessary in this case, since the motion to dismiss may be decided wholly on the papers submitted by the parties. See id ("As we noted over thirty years ago, motions may be decided wholly on the papers, and usually are.") (citingWorld Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362, 366 [2d Cir. 1965]) (internal quotations marks omitted). Accordingly, the defendant's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(d) is denied.
IV. CONCLUSION
For the reasons set forth above, the defendant's motion to dismiss the complaint is denied in part and granted in part.