Opinion
22-CV-8423 (LTS)
02-21-2023
JACOB MUZUMALA, Plaintiff, v. CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES; PAMOJA HOUSE; BRONXWORKS; PROJECT RENEWAL; DANIEL W. TEITZ OFFICIAL CAPACITY; GARY P. JENKINS OFFICIAL CAPACITY; GAIL CRICK; EBONY WEBB; TAMARA GAYLE; SUSAN BRADY; JANE DOE; JOHN DOE, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is appearing pro se, brings this action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated October 12, 2022, 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 grants Plaintiff leave to file a second amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP 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, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
BACKGROUND
The following facts are drawn from the amended complaint. Plaintiff, who is of “African descent,” came to the United States in 2006. (ECF 11 ¶ 8.) At an unspecified time, Plaintiff applied to become a legal permanent resident of the United States. Between 2019 and October 2021, Plaintiff lived in New Paltz, New York, Brooklyn, New York, and New Orleans, Louisiana, after enrolling in advanced academic programs in those places. In all three locations, federal agents and their “proxies” stalked Plaintiff and invaded his privacy in an apparent attempt, Plaintiff believes, to have him deported. Although Plaintiff's petition for permanent residency status was approved on May 21, 2021, the “immigration pursuit has persisted anyway.” (ECF 11 ¶¶ 21, 26-27.)
Plaintiff alleges that, since he returned to New York City from New Orleans in November 2021, his rights have been violated in myriad ways in the New York City homeless shelter system. (ECF 11.) Named as defendants in an amended complaint Plaintiff filed on January 23, 2023, are: (1) the City of New York; (2) New York City Department of Homeless Services (DHS); (3) Pamoja House; (4) Pamoja House Director Gail Crick; (5) BronxWorks; (6)Project Renewal; (7) Daniel W. Teitz, Commissioner, New York State Office of Temporary and Disability Assistance; (8) Gary P. Jenkins, Commissioner, New York City Human Resources Administration; (9) Ebony Webb, Program Director, Help107; (10) Tamara Gayle, Program Director, JAMS; (11) Boulevard Men's Residence (BRC) Doctor Susan Brady; (12) Jane Doe, JAMS Resident Assistant; (13) John Doe, DHS peace officer at JAMS.
With the exception of Pamoja House, which is located in Brooklyn, New York, the facilities named as defendants are located in Manhattan or the Bronx.
In November 2021, upon returning to New York City from New Orleans, Plaintiff sought temporary housing from the City of New York, and he was housed in a number of shelters “under DHS,” including Pamoja House, BronxWorks, Project Renewal, Help107, BRC, and JAMS. Plaintiff asserts that his rights under state and federal law have been violated at these facilities in myriad ways. (Id. ¶¶ 31-33.) Plaintiff alleges that: (1) Defendants have been “deliberately indifferent” to his health and the health of other shelter residents by housing substance abusers with people who are either are or are perceived to be mentally ill; (2) he has been exposed to illegal drugs and secondhand smoke of various types; (3) BRC doctor Susan Brady misdiagnosed Plaintiff with schizophrenia; (4) several roommates physically assaulted and threatened Plaintiff; (5) Defendants denied Plaintiff's reasonable requests for transfers to other shelters, and retaliated against him for requesting transfers; (6) Defendants destroyed his property; (7) Defendants called the police to have Plaintiff removed from a shelter when he was simply exercising his right to consider whether or not to accept the transfer; (8) Defendants Teitz and Jenkins failed to properly train their staff; and (9) DHS staff unlawfully videotaped Plaintiff.(Id. ¶¶ 41-69, 97-98, 121123, 167-191.)
Plaintiff previously filed two complaints against federal actors about the events occurring in New Paltz, Brooklyn, and New Orleans before November 2021. See Muzumala v. Mayorkas, ECF 1:22-CV-3789, 15 (JGK) (S.D.N.Y. filed May 9, 2022)(third amended complaint naming as Defendants United States Department of Homeland Security (DHS); DHS Secretary Alejandro Mayorkas; United States Immigration and Customs Enforcement (ICE); ICE Director Tae Johnson; and the Federal Bureau of Investigation, matter pending) (Muzumala I); Muzumala v. Unknown Federal Agents, ECF 1:22-CV-7851, 2 (UA) (S.D.N.Y. filed Sept. 12, 2022) (complaint naming Unknown Federal Agents; John and Jane Does; the University of New Orleans; Neal Maroney, and Susan Brady) (Muzumala II). There is some duplication of allegations among Plaintiff's submissions in these three cases. In Muzumala II, Plaintiff discusses some of the same shelter experiences at issue in this case, Dr. Susan Brady is a named defendant in both cases, and he alleges in Muzumala II that the federal actors “influenced” Brady to issue an “untrue” mental health diagnosis. ECF 1:22-CV-7851, 2 ¶ 41. In this case, Plaintiff refers to events occurring before November 2021, and asserts that federal agents and proxies named in Muzumala I and Muzumala II continue to “track” and “follow” him, are “influencing” the Defendants in this case, and creating an environment encouraging “blatant disparate treatment of Plaintiff” based on his “national origin because of the expectation that Plaintiff was getting deported.” (ECF 11 ¶ 56.) Plaintiff does not name any federal actors as defendants in this case, and he has already filed complaints against the federal actors and proxies regarding the events occurring before November 2021. For these reasons, the Court in this matter will not address the federal actors and proxies or their alleged conduct. (ECF 11 ¶¶ 9-28, 53-56, 126.)
Plaintiff seeks to certify a class action of non-drug users with real or perceived mental illnesses who have been housed with substance abusers and exposed to illegal drugs and smoke (Id. ¶¶ 350-358), money damages, litigation expenses under 42 U.S.C. § 1988, and to have Brady's “misdiagnosis” rescinded, (Id. at 81-84.) Plaintiff also filed motions seeking: (1) disclosure of the names of the Doe defendants under Federal Rule of Civil Procedure 26; and (2) service on the named defendants. (ECF 9, 10.)
DISCUSSION
A. Class Action
Plaintiff seeks to certify a class action in connection with his claims. “[B]ecause pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); see also United States v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008) (“[A]n individual who is not licensed as an attorney ‘may not appear on another person's behalf in the other's cause.'” (citations omitted)); Phillips v. Tobin, 548 F.2d 408, 410 (2d Cir. 1976) (holding that it is plain error to permit a pro se prisoner to bring a class action on behalf of fellow inmates). As a non-attorney, Plaintiff cannot bring claims on behalf of others. The Court therefore construes the amended complaint as asserting claims solely on behalf of Plaintiff, the only person who signed the amended complaint.
B. Claims Under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48-49 (1988).
I. Claims Against the Named Defendants
(a) Private Actors
A claim for relief under Section 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). Plaintiff does not allege that the private parties named in the amended complaint work for any state or other government body, and thus does not state a claim against these defendants under Section 1983.
The activity of a private entity can be attributed to the state in three situations: (1) the entity acts using the coercive power of the state or is controlled by the state (the “compulsion test”); (2) the entity willfully participates in joint activity with the state or its functions are entwined with state policies (the “joint action” or “close nexus” test); or (3) the state has delegated a public function to the entity (the “public function” test). See Fabricant v. French, 691 F.3d 193, 207 (2d Cir. 2012). The fundamental question under each test is whether the private entity's challenged actions are “fairly attributable” to the state. Id. (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
In analyzing whether a private entity acts under color of state law for purposes of Section 1983, the district court begins “by identifying the specific conduct of which the plaintiff complains,” rather than the general characteristics of the entity. Id. Providing housing is not a public function because it is not the exclusive province of the state. 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.'”). The fact that an entity receives public funds does not turn private action into state action. See Rendell-Baker, 457 U.S. at 840.
The private defendants named in this amended complaint - Pamoja House and its director, Crick; BronxWorks; Project Renewal; Program Director for Help107 Ebony Webb; JAMS, its program director Tamara Gayle, and its resident assistant Jane Doe; and BRC Dr. Susan Brady - are private actors who are not alleged to work for any state or other governmental body. Plaintiff's allegations that these defendants are homeless shelters, operate “under DHS,” work for agencies that operate homeless shelters, or receive funds from the City of New York, are insufficient to suggest that their actions are attributable to the state. Plaintiff therefore fails to state a Section 1983 claim against these Defendants.
Venue is not proper in this court in connection with events occurring at Pamoja House, which is located in Brooklyn, New York. 28 U.S.C. § 1391; 28 U.S.C. § 112(c) (Brooklyn, which is located in Kings County, New York, falls within the Eastern District of New York).
(b) DHS and the City of New York Plaintiff's claims against DHS must be dismissed because an agency of the City of New York is not an entity that can be sued. 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); see also Emerson v. City of New York, 740 F.Supp.2d 385, 396 (S.D.N.Y. 2010) (“[A] plaintiff is generally prohibited from suing a municipal agency.”).
Plaintiff also names the City of New York as a defendant. When a plaintiff sues a municipality under Section 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, 63 (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). A municipal organization is subject to liability where its “failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (citing Monell, 436 U.S. at 694). In other words, to state a Section 1983 claim against a municipality, 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).
Plaintiff asserts claims regarding his housing and alleged retaliation, but, as discussed below, his allegations do not amount to constitutional violations. Moreover, even if Plaintiff had provided facts suggesting a violation of his constitutional rights, he has not alleged that the city has a policy, custom, or practice that was the cause of his injury. Plaintiff there has failed to state a municipal liability claim against the City of New York. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (absent an underlying constitutional violation, there can be no municipal liability under Monell). Even if Plaintiff had sufficiently stated a constitutional violation, he still fails to state a municipal liability claim against the City. None of Plaintiff's allegations suggests that the City has a policy, practice, or custom that violated his rights.
(c) OTDA Commissioner Teitz, HRA Commissioner Jenkins, and DHS Peace Officer John Doe
It is not clear that John Doe is a state actor, but the Court will assume that he is for purposes of this order.
To state a claim under Section 1983, a plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep' t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official ....” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).
Plaintiff does not allege any facts showing how Defendants Teitz, Jenkins, and John Doe were personally involved in the events underlying his claims, or in violating his constitutional rights.
2. Substantive Claims
(a) Shelter Conditions
Any claims Plaintiff is asserting, under Section 1983, based on shelter conditions must be dismissed because there is no federal constitutional right to housing, including a shelter system. In Lindsey v. Normet, the Supreme Court held that there is no “constitutional guarantee of access to dwellings of a particular quality.” 405 U.S. 56, 74 (1972). Furthermore, the government has no “obligation to provide adequate housing.” Richardson v. City of New York, No. 12-CV-2545 (WHP), 2013 WL 2124176, at *2 (S.D.N.Y Apr. 17, 2012) (internal quotation marks and citation omitted). Plaintiff's allegations about being sent to an undesirable shelter do not state a federal claim because there is no due process right to placement in a particular type of shelter under federal law or New York law. See Lindsey, 405 U.S. at 74 (“We are unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality . . . [a]bsent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions”); Jenkins v. New York City Dep't of Homeless Services, 643 F.Supp.2d 507, 512 (S.D.N.Y 2009) (“The Plaintiff has no claim for deprivation of property without due process because he does not have a property right to placement in a particular type of shelter under New York law.”). Accordingly, Plaintiff's allegations about shelter conditions do not state a claim under Section 1983.
Plaintiff alleges that Defendants have been deliberately indifferent to his health and safety, suggesting a claim under the Eighth Amendment to the United States Constitution. See Farmer v. Brennan, 511 U.S. 825, 828 (1994) (“A prison official's ‘deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”). The Eighth Amendment, which prohibits the infliction of “cruel and unusual punishments,” only applies to individuals who are in custody. See U.S. Const. amend. VIII; Cox v. Fischer, 248 F.Supp.3d 471, 484 (S.D.N.Y. 2017) (noting that the Eighth Amendment is “specifically concerned with the unnecessary and wanton infliction of pain in penal institutions,” and serves as “the primary source of substantive protection to” convicted prisoners) (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)). Because Plaintiff was not a prisoner or in criminal custody when he was in the shelter system, the deliberate indifference standard does not apply to his allegations arising from his experiences in shelters.
(b) Retaliation
To state a First Amendment retaliation claim, a private citizen must allege that “(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right.” Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) (“Regardless of the factual context, [courts] have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.”). The plaintiff must also show, as with other Section 1983 claims, that the defendants' actions were taken under color of state law. See Sykes, 723 F.3d at 406 (internal citation omitted); see also Ciambriello, 292 F.3d at 323.
Even if the Court assumes that Plaintiff is entitled to First Amendment protection for his advocacy on issues relating to conditions at the shelter, that the alleged retaliatory actions were caused by Plaintiff's exercise of his rights, and that Plaintiff's exercise of his First Amendment rights was effectively chilled, Plaintiff fails to identify any suable defendants who allegedly retaliated against him. As explained above, the shelter staff are private actors, and Plaintiff has failed to allege facts suggesting they should be considered state actors under Section 1983.
C. State Law Claims
Plaintiff asserts state law claims. 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)).
Because it is not clear whether Plaintiff can state a federal claim, the Court will determine at a later stage whether to exercise supplemental jurisdiction over any state law claims Plaintiff asserts. 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)).
LEAVE TO AMEND
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 a valid claim, the Court grants Plaintiff 60 days' leave to amend his complaint for a second time to detail his claims.
Plaintiff is granted leave to submit a second amended complaint to provide more facts about his claims. In the “Statement of Claim” section of the second amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the second amended complaint that Plaintiff wants the Court to consider in deciding whether the second amended complaint states a claim for relief. That information should include:
This grant of leave to replead does not extend to claims against federal actors whose conduct is already the subject of pending lawsuits that Plaintiff has filed in this district.
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's second amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's second amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the amended complaint must be repeated in the second amended complaint.
CONCLUSION
Plaintiff is granted leave to file a second amended complaint that complies with the standards set forth above. Plaintiff must submit the second amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Second Amended Complaint,” and label the document with docket number 22-CV-8423 (LTS). A Second Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, this action will be dismissed for failure to state a claim upon which relief may be granted.
The outstanding motions (ECF 9, 10,) are denied without prejudice to renewal once Plaintiff has filed a second amended complaint and the Court has had the opportunity to evaluate its merit.
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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.