Opinion
22-CV-6446 (AT) (KHP)
05-09-2023
Woodrow Preacely, Petitioner, v. U.S Department of Housing and Urban Development, Office of Investigations, Respondent.
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
TO: HONORABLE ANALISA TORRES, United States District Judge
FROM: KATHARINE H. PARKER, United States Magistrate Judge.
Pro se Petitioner Woodrow Preacely (“Petitioner”) commenced this action in state court against the United States Department of Housing and Urban Development (“HUD”), and the action was removed to this Court on July 29, 2022. Petitioner filed an Amended Petition on December 12, 2022 that also names the United States of America (“USA”) as a respondent. The Amended Petition alleges, in sum, that HUD and the USA (collectively, “Respondents”) conspired with non-parties to surveil and harass Petitioner. Respondents moved to dismiss the Amended Petition pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). For the reasons stated below, I respectfully recommend that the motion to dismiss be granted.
BACKGROUND
1. Allegations in the Amended Petition
Petitioner is a black man who resides in an apartment in a New York City Housing Authority (“NYCHA”) complex in Manhattan, where he has resided for over twenty-five years. (Am. Pet. at 6.) Many of Petitioner's neighbors are Dominican Americans. (Id. at 5.) Throughout his tenancy in his apartment, he has experienced difficulties with his neighbors, NYCHA, the New York Police Department (“NYPD”), New York Fire Department (“FDNY”), various “NYCHA Contractors,” and two debt collection agencies.
In particular, Petitioner asserts that NYCHA and its contractors have surveilled him via cameras in the hallway outside his apartment and by “covert video and audio devices” placed within his apartment. (Id. at 5, 9.) He also asserts that NYCHA is stoking “racial tension” between him and his neighbors, including by using a “Dominican Neighborhood Watch Program” that is funded by “alt-right and white supremacist organizations” in order to spy on Petitioner. (Id. at 2, 5-6.) Further, Petitioner suspects that he was enrolled in a “social/ medical experimentation program” without his consent to “fraudulently portray [him] as mentally deficient” so he can “be more easily killed with impunity by law enforcement.” (Id. at 5).
Petitioner further asserts that his neighbors often call the NYPD and FDNY to respond to his apartment without reason for doing so in an attempt to intimidate him and in the hope that he will be killed by the police. (Id. at 4.) This includes an incident on July 10, 2020 that resulted in the NYPD taking Petitioner to the hospital for a psychological evaluation. (Id. Exh. 5.) Petitioner also asserts that his neighbors have made numerous false criminal and civil complaints against him, resulting in his being “placed on a federal terrorist watch list” and being under NYPD investigation. (Id. at 4, 10.) On one occasion, a group of neighbors also attempted to steal Petitioner's smart phone. (Id. at 2.)
In addition, Petitioner asserts that he has been harassed by two debt collection agencies, LVNV Funding LLC (“LVNV”) and Portfolio Recovery Associates. Petitioner suspects that NYCHA contracted with these companies in order to cause him emotional distress and to benefit financially. (Id. at 3, 5-6.) In December 2019, LVNV sued Petitioner, and after Petitioner filed counterclaims alleging that LVNV had installed hidden cameras in his apartment, LVNV dropped the lawsuit against him in March 2020. (Id. Exhs. 9, 10.) Shortly thereafter, Petitioner began receiving emails from an anonymous sender stating that the sender had accessed Petitioner's computer camera and recorded an explicit video of him and threatening to post the video online unless Petitioner sends a sum of Bitcoin. (Id. at 7.) Petitioner suspects these emails were sent by LVNV and NYCHA “agitators” in an attempt to sexually exploit him. (Id.)
Petitioner appears to assert that HUD, in its capacity as a “federal monitor” of NYCHA, bears responsibility for the issues he is facing. (Id. at 8.) Petitioner further asserts that Respondents violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) by using “rackets of public housing entities” to “exploit” Petitioner and other NYCHA tenants. (Id. at 8.)
Petitioner seeks injunctive relief, including the “identification . . . of all parties NYCHA has/had contractual relationships with to conduct investigatory, surveillance, harassment and torture activities against petitioner”; “the immediate ceasing by government of all NYCHA and contractors' surveillance, investigatory, ‘swatting,' stalking, harassment, and loitering activities, including dismantling of all covert video and audio devices within his apartment”; and “determination[s]” as to whether one of his “agitator” neighbors is “alive or not,” whether he is on a terrorist watch list, whether he is an “uncompensated medical experimentation victim,” and whether he is under “perpetual NYPD investigation.” (Id. at 9-10.)
2. Procedural History
a. Prior Actions
Petitioner previously filed four actions in this District concerning his tenancy in the NYCHA apartment and alleging substantially similar allegations of surveillance and harassment by NYCHA, his neighbors, and the NYPD. The first such case was filed on July 13, 2010 against the City of New York, the NYPD, NYCHA, and a NYCHA attorney. Preacely v. City of New York, 10-cv-5332 (LTS) (DCF) (“Preacely I”). The court dismissed the complaint for failure to comply with Federal Rule of Civil Procedure (“Rule”) 8, because it was “impossible” to determine from the complaint whether Petitioner had articulated “any claims that could properly be litigated in this Court.” Preacely I, 2012 WL 12883703, at *2 (S.D.N.Y. June 12, 2012), aff'd sub nom. Preacely v. City of New York/New York Police Dep't, 531 Fed.Appx. 173 (2d Cir. 2013).
Several months later, Petitioner filed a second action against the same defendants and several individual police officers. Preacely v. City of New York, et al., No. 12 Civ. 8330 (LAP) (“Preacely II”). That petition similarly asserted allegations of harassment, stalking and surveillance by a “Resident Watch regime,” NYCHA, and the NYPD. Preacely II, ECF No. 5. The court dismissed some claims as precluded by Preacely I and dismissed the petition without prejudice for failure to comply with Rule 8 and failure to state a claim. Id. After Petitioner failed to file an amended petition, the case was dismissed. Id., ECF No. 8.
Petitioner's third action, filed in 2014 and asserting similar claims against substantially the same defendants, was dismissed as “baseless” and lacking any legal theory on which to rely. Preacely v. City of New York, et al., 14-cv-5471 (LAP) (“Preacely III”), at ECF No. 7, aff'd, 622 Fed.Appx. 14, 15 (2d Cir. 2015). In 2018, Petitioner filed a fourth action, again alleging a campaign by NYCHA, his neighbors, and the NYPD to harass and surveil him. Preacely v. City of New York, et al., 18-cv-4041 (CM) (“Preacely IV”). The court again dismissed the petition for failure to state a claim on which relief could be granted. Preacely IV, ECF No. 7, aff'd, 19-cv-602, ECF No. 56. In light of Petitioner's filing, the court barred him under 28 U.S.C. § 1651 from filing any future civil ligation in this District in forma pauperis without obtaining leave of the Court. Preacely IV, ECF No. 12 (S.D.N.Y. Nov. 22, 2019). In light of Petitioner's numerous unsuccessful appeals to the Second Circuit, the Second Circuit imposed a similar leave-to-file sanction against Petitioner. 19-cv-602, ECF No. 53.
b. The Instant Action
Petitioner initiated this action on March 3, 2022 by filing a petition in the Supreme Court of the State of New York, County of New York. Unlike his prior actions, this petition named HUD as the Respondent. By filing in state court, Petitioner avoided the procedural hurdle of seeking the Court's leave to initiate an action in forma pauperis in this District. On July 29, 2022, HUD removed the petition to this Court pursuant to 28 U.S.C. § 1442(a)(1). (ECF No. 1.) I was referred for general pretrial management and scheduled an initial case management conference with the parties. On October 20, 2022, I granted HUD's request to adjourn the conference pending its anticipated motion to dismiss. (ECF No. 14.) Petitioner opposed this request and filed several letters seeking the reinstatement of the conference and an order compelling discovery, which I denied. (ECF Nos. 16, 17, 18, 28, 30, 39, 41.)
On November 8, 2022, HUD moved to dismiss the petition. (ECF No. 22.) Petitioner then filed an Amended Petition, which purported to add the USA as a respondent. (ECF No. 32.) In light of the Amended Petition, I terminated the motion to dismiss as moot and set a briefing schedule for a motion to dismiss the Amended Petition. Respondents filed the Motion to Dismiss the Amended Petition on February 22, 2023. (ECF No. 42.) The opposition brief was due on March 22, 2023, but Petitioner did not file an opposition brief, and Respondents did not file a reply.
On March 21, 2023, Petitioner filed an interlocutory appeal challenging one of my orders denying his request to reinstate the Initial Case Management Conference. (ECF No. 49.) As of the date of this Report, Petitioner's interlocutory appeal remains pending in the Second Circuit, at Court of Appeals Docket No. 23-398.
LEGAL STANDARDS
1. Rule 8 Standard
Rule 8(a)(2) requires a plaintiff to make “a short and plain statement of the claim showing that the pleader is entitled to relief.” The statement should be plain “because the principal function of pleadings . . . is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Dismissal for failure to comply with Rule 8 is appropriate where the pleading “is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id.
In applying Rule 8 to a pro se complaint, the court should construe the pleading “liberally . . . and with sufficient sensitivity ‘so as to do justice'” under the federal rules. Preacely v. AAA Typing & Resume, Inc., 2011 WL 3740715, at *2 (S.D.N.Y. May 10, 2011) (citations omitted), report and recommendation adopted, 2011 WL 3739997 (S.D.N.Y. Aug. 23, 2011). However, a party's pro se status does not excuse him from compliance with Rule 8, and a pro se pleading should be dismissed if it is prolix, vague, or unintelligible. Jones v. Nat'l Commc'ns & Surveillance Networks, 266 Fed.Appx. 31, 33 (2d Cir. 2008) (affirming dismissal of pro se complaint for failure to comply with Rule 8); Gonzalez v. Wing, 113 F.3d 1229, at *1 (2d Cir. 1997) (same).
2. Rule 12(b)(1) Standard
“[F]ederal courts are courts of limited jurisdiction.” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (citation omitted). “Determining the existence of subject matter jurisdiction is a threshold inquiry.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010). Under Rule 12(b)(1), a claim must be dismissed for lack of subject matter jurisdiction when the court “lacks the statutory or constitutional power to adjudicate it.” Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002) (citation omitted). The plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014) (citation omitted).
It is “long settled law” that pursuant to the doctrine of sovereign immunity, the USA and its agencies are immune from being sued “unless there has been an express waiver of that immunity.” E.P.A. v. Gen. Elec. Co., 197 F.3d 592, 597 (2d Cir.1999), amended on reh'g, 212 F.3d 689 (2d Cir. 2000). Sovereign immunity is “jurisdictional in nature,” and where a litigant has brought an action against the USA or a federal agency, he bears the burden of showing that sovereign immunity was waived. Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) (citations omitted).
3. Rule 12(b)(6) Standard
For a complaint to survive a Rule 12(b)(6) motion to dismiss, the court must determine that the complaint contains “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015).
However, even if a pleading contains sufficient factual allegations to infer a claim for relief, a court may dismiss it as frivolous if the “well-pleaded facts are ‘clearly baseless'-that is, if they are ‘fanciful,' ‘fantastic,' or ‘delusional.'” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (quoting Denton v. Hernandez, 504 U.S. 25, 32-33 (1992)); see also Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (affirming sua sponte dismissal of action by pro se litigant as frivolous where litigant was realleging claims that had previously been dismissed).
In considering a 12(b)(6) motion to dismiss a pro se plaintiff's complaint, the court must construe the complaint “liberally to raise the strongest arguments [it] suggest[s],” but may not “read into” the pleading any arguments that the pleading itself does not suggest. Rosenwasser v. Fordham Univ., 772 Fed.Appx. 1, 2 (2d Cir. 2019) (citations omitted).
4. Leave to Amend
When a motion to dismiss is granted, district courts generally grant a pro se litigant leave to amend the pleading to cure its defects. However, leave to amend is not required where it would be futile, Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011) (citation omitted), such as “[w]here the problems with a claim are ‘substantive'” rather than the result of inadequate pleading, In re DraftKings Inc. Sec. Litig., 2023 WL 145591, at *39 (S.D.N.Y. Jan. 10, 2023) (citation omitted).
When a district court dismisses a complaint based on a lack of subject matter jurisdiction, it “lacks the power to adjudicate the merits of the case.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54-55 (2d Cir. 2016) (citations omitted). Therefore, when a case is dismissed for lack of federal subject matter jurisdiction, “Article III deprives federal courts of the power to dismiss [the] case with prejudice.” Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999).
DISCUSSION
1. The Amended Petition Does Not Comply with Rule 8
The Amended Petition is not “plain” in accordance with the requirements of Rule 8 because it is so “confused” and “vague” that it is not possible for Respondents to properly answer it. Salahuddin, 861 F.2d at 42. Specifically, the Amended Petition fails to adequately allege what federal rights were violated, what Respondents' role was, if any, in violating those rights; when, where, or how such violations occurred; and under what causes of action Petitioner seeks relief. The Amended Petition mostly concerns actors other than Respondents, including Plaintiff's neighbors and unspecified “contractors” and “agitators.” The pleading is chockfull of wide-ranging, conclusory allegations of surveillance, harassment, provocation, loitering, spying, social experimentation, hate crimes, and torture instigated and carried out over a twenty-five year period by a group of conspirators that includes individual residents of Petitioner's apartment complex, unspecified “alt right” groups, law enforcement, NYCHA, and private corporations. The Amended Petition also does not follow a coherent narrative, contains many tangential footnotes, refers vaguely to a host of exhibits, and is generally difficult to follow.
It is unclear from the array of allegations whether Petitioner has articulated and properly supported any claims that could properly be litigated in this Court, let alone claims against Respondents. Cf. Preacely I, 2012 WL 12883703, at *2 (finding it “impossible” to discern whether a similar petition articulated any claims and dismissing the petition for failure to comply with Rule 8.) Such a pleading does not provide Respondents with fair notice of Petitioner's claims. Nygard v. Bacon, 2021 WL 3721347, at *7 (S.D.N.Y. Aug. 20, 2021) (complaint was too “lengthy, conclusory, and confusing to put Defendant on notice of the claims against him”); Djangmah v. Magafara, 2018 WL 4080346, at *3 (S.D.N.Y. Aug. 26, 2018) (pro se complaint was too “confusing, ambiguous, and incomprehensible” to give defendants notice of plaintiff's claims).
The Amended Petition also contains hyperbolic and unsupported accusations that do not appear connected to any conduct by Respondents or any plausible legal theory that could be brought against Respondents. For example, Petitioner makes numerous references to “alt right and white supremacist organizations” in his neighborhood; refers to unspecified individuals as “evil” and “disgusting,” and provides a name and contact information for his former employer, who has no apparent relationship to this action. Pleadings such as this one that “ramble, . . . needlessly speculate, accuse and condemn,” and that “contain circuitous diatribes far removed from the heart of the claim[s],” do not comport with Rule 8 and “must be dismissed.” Coon v. Benson, 2010 WL 769226, at *3 (S.D.N.Y. March 8, 2010) (quotation marks and citation omitted); accord Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (affirming dismissal of pro se complaint that contained “unrelated and vituperative charges that defied comprehension”).
Therefore, I respectfully recommend that the Petition be dismissed in its entirety for failure to comply with Rule 8.
2. The Court Lacks Subject Matter Jurisdiction over the Petition
Because Respondents are the federal government and a federal agency, the doctrine of sovereign immunity protects them from being sued unless Congress has expressly waived that immunity as to the claims brought against them. Respondents argue that there has not been a waiver of their sovereign immunity for any claims that might plausibly be asserted here, and accordingly, the Court lacks subject matter jurisdiction over the Amended Petition.
As discussed above, it is difficult to discern any specific causes of action from the Amended Petition. That said, construed liberally, the Amended Petition references possible tort claims premised on Respondents' supervision of NYCHA; housing discrimination claims premised on the racist harassment directed at Petitioner by others; claims brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”) premised on Respondents' contracting with debt collection firms to harass Petitioner; and claims brought pursuant to RICO premised on the notion that Respondents are using the “rackets of public housing entities” to exploit Petitioner.Petitioner has not pointed to any waiver of sovereign immunity as to any of these claims.
As discussed below, the Amended Petition does not plausibly assert any of these claims.
As to any tort claims that may be asserted, the Federal Tort Claims Act (“FTCA”) provides the exclusive remedy for torts committed by the federal government or federal agencies and thus is the proper basis for such claims. Spinale v. United States, 2004 WL 50873, at *9 (S.D.N.Y. Jan. 9, 2004). The FTCA provides a limited waiver of sovereign immunity for certain suits arising from injury caused by “any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). However, a condition of this limited waiver of sovereign immunity is “that a claimant exhaust all administrative remedies before filing a complaint in federal district court.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005); see also 28 U.S.C. § 2675(a).
Petitioner bears the burden to “both plead and prove compliance” with this exhaustion requirement. In re Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987). Here, Petitioner has done neither. Additionally, an attorney from HUD submitted a sworn declaration affirming that HUD has no record of receiving an administrative tort claim from Petitioner related to the allegations in the Amended Petition. (Samadi Decl., ECF No. 21.) Thus, the Court lacks subject matter jurisdiction to consider any tort claim asserted in the Amended Petition.
As to any claims for housing discrimination on the basis of race, the appropriate cause of action is the Fair Housing Act (“FHA”), which makes it unlawful to “make unavailable or deny[] a dwelling to any person because of race, color, religion, sex, or national origin.” 42 U.S.C. § 3604(a). The Secretary of HUD is responsible for administering the FHA. Id. § 3608(a). However, nothing in the FHA contemplates a waiver of sovereign immunity for claims asserted pursuant to the FHA. Commissiong v. U.S. Dep't of Hous. & Urb. Dev., 2022 WL 1715978 at *1 (2d Cir. May 27, 2022) (affirming dismissal for lack of subject matter jurisdiction of FHA claims brought against HUD because HUD is immune from suits under the FHA); Bennett v. N.Y.C. Hous. Auth., 248 F.Supp.2d 166, 170 (E.D.N.Y. 2002) (finding that the FHA does not include a waiver of sovereign immunity).
Notably, HUD has waived its sovereign immunity to be sued in its capacity as distributer of funds to NYCHA for claims brought pursuant to the Rehabilitation Act and is not immune from such suits. Williams v. N.Y.C. Hous. Auth., 2009 WL 804137, at *4 (S.D.N.Y. Mar. 26, 2009), aff'd, 408 Fed.Appx. 389 (2d Cir. 2010). The Rehabilitation Act prohibits discrimination based on disability. Although Petitioner has stated in court filings that he is disabled, the Amended Petition does not assert or suggest that any discrimination or mistreatment occurred as a result of his disability and thus cannot be read to assert Rehabilitation Act claims.
Similarly, there are no waivers of sovereign immunity on which Petitioner can rely for any claims brought pursuant to the FDCPA. Ojo v. United States, 2020 WL 7262853, at *5 (E.D.N.Y. Dec. 9, 2020) (finding that nothing in the FDCPA waives the government's sovereign immunity from suit and dismissing RICO claim brought against the USA for lack of subject matter jurisdiction). Likewise, there is no waiver of sovereign immunity for RICO claims. Spinale, 2004 WL 50873, at *7-8 (finding no waiver of sovereign immunity for claims brought pursuant to RICO and dismissing RICO claims against the USA for lack of subject matter jurisdiction).
Because Respondents have not waived their sovereign immunity from suit for any of the claims implicated by the Amended Petition, the Court lacks subject matter jurisdiction over any such claims. Notably, when a federal court lacks subject matter jurisdiction to adjudicate a removed case, the proper remedy is generally to remand the case to state court rather than dismiss the claims. Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014). However, dismissal rather than remand is the proper remedy here because Respondents are also immune from suit in state court. Commissiong, 2022 WL 1715978, at *2 (explaining that dismissal of removed action was appropriate because the defendants were protected by sovereign immunity from suits in state court as well).
Accordingly, as an alternative to dismissal for failure to comply with Rule 8, the Amended Petition should be dismissed for lack of subject matter jurisdiction.
3. The Amended Petition Fails to State a Claim under Rule 12(b)(6) and Should be Dismissed as Frivolous
In the event the Court finds that the Amended Petition complies with Rule 8 and that Respondents have waived their sovereign immunity as to any potential claims, the Amended Petition should instead be dismissed on the ground that it is frivolous and fails to state a claim on which relief can be granted. Even with the special solicitude afforded to pro se pleadings, the Court cannot reasonably infer from the Amended Petition any plausible claim against Respondents.
The allegations in the Amended Petition primarily concern parties not named as Respondents. To the extent the Amended Petition implicates Respondents, the Court would have to accept as true Plaintiff's assertions that the government is contracting with various non-parties to spy on, harass, intimidate, and otherwise harm Petitioner because of their “alt-right” views and in order to profit off of Petitioner's pain. Such an assertion is not supported by any non-conclusory facts pleaded in the Amended Petition, is highly speculative, and is too irrational to form the basis of a federal lawsuit. See, e.g., Mecca v. U.S. Gov't, 2006 WL 2927157, at *1-2 (E.D.N.Y. Oct. 4, 2006) (dismissing as frivolous a pro se complaint alleging the USA was invading the plaintiff's privacy, committing fraud and torture, and attempted to kill the plaintiff), aff'd, 232 Fed.Appx. 66 (2d Cir. 2007); Tessema v. Env't Prot. Agency, 2021 WL 2666855, at *3-4 (S.D.N.Y. June 29, 2021) (same where the complaint alleged the EPA was targeting the plaintiff for human research experiments), appeal dismissed sub nom. Tessema v. U.S. Env't Prot. Agency, 2021 WL 6427942 (2d Cir. Dec. 16, 2021); Papadopoulos v. Gazes, 2014 WL 3928940, at *5 (S.D.N.Y. Aug. 12, 2014) (same where the complaint alleged the FBI conspired with the “Palm Beach Mafia” to cause the plaintiff financial harm).
Moreover, even if the Court accepted as true the farfetched allegations about Respondents, the Amended Petition still does not state a claim on which relief can be granted. To start, as to any FTCA claims, Petitioner has failed to meet the basic pleading requirements to assert a claim under the FTCA, including failure to plead compliance with the FTCA's statute of limitations. See Burke v. United States Postal Serv., 2020 WL 9816003, at *5 (E.D.N.Y. Sept. 28, 2020). Similarly, the Amended Petition fails to assert a claim pursuant to the FHA for housing discrimination because the FHA requires either that the litigant file an administrative complaint with HUD or that he bring an action against the alleged discriminator, i.e. NYCHA. 42 U.S.C. § 3610(a)(1); see also Commissiong, 2022 WL 1715978, at *1 (FHA does not make HUD subject to suit for any alleged failure to discharge its oversight or investigatory obligations). Petitioner has done neither here. He previously attempted to sue NYCHA for the alleged discriminatory conduct asserted here, but those actions were dismissed for failure to state a claim. See, e.g., Preacely I, 2012 WL 12883703, at *3 (finding Petitioner's allegations that NYCHA engaged in discriminatory harassment against him were “not supported by sufficient non-conclusory factual allegations to meet the pleading requirements of Twombly and Iqbal”).
The Amended Petition also fails to state a claim pursuant to the FDCPA, which is a statute that regulates interactions between debt collectors and consumers. To plausibly assert such a claim, a plaintiff must allege, among other things, that the defendant is a debt collector. Owoyemi v. Credit Corp Sols. Inc., 596 F.Supp.3d 514, 520 (S.D.N.Y. 2022). The Amended Petition does not name any debt collector as a respondent but rather alleges that Respondents contracted with debt collectors. This does not amount to a violation of the FDCPA.
Petitioner has similarly failed to state a claim under RICO. To assert a RICO claim, a plaintiff must plead “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). “[F]or an association of individuals to constitute an enterprise, the individuals must share a common purpose to engage in a particular fraudulent course of conduct and work together to achieve such purposes.” First Capital Asset Mgmt. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir. 2004). Petitioner does not provide a factual basis for the assertion that Respondents formed an “enterprise” with NYCHA, contractors, Petitioner's neighbors, and debt collectors. Petitioner's conclusory statement that Respondents used the “rackets of public housing” to harm him and others is insufficient to state a RICO claim. Vidurek v. Koskinen, 2018 WL 3597644, at *10 (S.D.N.Y. July 25, 2018), aff'd, 789 Fed.Appx. 889 (2d Cir. 2019).
Accordingly, in the event the Amended Petition is not dismissed pursuant to Rules 8(a) or 12(b)(1), it should be dismissed for failure to state a claim.
4. Leave to Amend
If this case is dismissed for lack of subject matter jurisdiction, “Article III deprives [the court] of the power to dismiss [the] case with prejudice,” and the Amended Petition should be dismissed without prejudice. Hernandez, 182 F.3d at 123. If, however, the Amended Petition is dismissed pursuant to Rules 8 or 12(b)(6), I respectfully recommend that the dismissal be with prejudice. Petitioner already amended the petition once following the first motion to dismiss, but the Amended Petition does not cure the defects that HUD raised in that motion. Petitioner also has not shown how any deficiencies in the Amended Petition could be remedied, nor has he advanced any plausible, non-frivolous claims. Therefore, any amendment would be futile. See Lin v. Canada Goose US, Inc., 2022 WL 16926312, at *9 (S.D.N.Y. Nov. 14, 2022) (denying leave to amend where the plaintiff did not state how the deficiencies could be cured); Adams v. Rubinstein, 2015 WL 5021740, at *1 (E.D.N.Y. Aug. 24, 2015) (same where the complaintasserted fanciful allegations); Bonfiglio v. N.Y. Presbyterian Hosp. Weill Cornell Med. Ctr., 2011 WL 2436706, at *1 (S.D.N.Y. June 16, 2011) (same where the court lacked subject matter jurisdiction over some claims and the complaint failed to plausibly assert other claims).
This is also Petitioner's fifth attempt at litigating similar claims in this District, albeit against different respondents. In light of Petitioner's filing history, he is subject to a filing injunction that requires him to seek leave from the Court before filing an action in forma pauperis. Petitioner avoided that hurdle here by filing this action in state court, but Defendants removed the action to this Court. To prevent vexatious litigation, I respectfully recommend that the filing injunction that is already in place against Petitioner be modified to include removed state court actions within the scope of the injunction. See Sassower v. Abrams, 833 F.Supp. 253, 264-72 (S.D.N.Y. 1993).
CONCLUSION
For the reasons set forth above, I respectfully recommend that Respondent's Motion to Dismiss be GRANTED, and that the filing injunction that is in place against Petitioner be modified to include removed state court actions within the scope of the injunction.
NOTICE
Petitioner shall have seventeen days and Respondents shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). If any party files written objections to this Report and Recommendation, the Petitioner shall have seventeen days to serve and file a response. Respondents shall have fourteen days to serve and file any response. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).