Williams v. Rhea et al

Filing 37

MEMORANDUM AND ORDER: Defendants' 24 motion to dismiss is denied. Ordered by Judge Frederic Block on 7/17/2012. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUSTIN WILLIAMS,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 10-CV-5440 (FB)

-againstJOHN B. RHEA, as Chairman of the New York
City Housing Authority, and the NEW YORK
CITY HOUSING AUTHORITY,
Defendants.
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Appearances:
For the Plaintiff:
PHILIP M. SMITH, ESQ.
MELISSA IACHAN, ESQ.
Patton Boggs
1185 Avenue of the Americas, 30th Floor
New York, NY 10036

For the Defendant:
DONNA MURPHY, ESQ.
New York City Housing Authority
Law Department
250 Broadway, 9th Floor
New York, NY 10007

KEVIN M. CREMIN, ESQ.
MFY Legal Services, Inc.
299 Broadway, 4th Floor
New York, NY 10007
NANCY GOLDHILL, ESQ.
Legal Services for NYC Staten Island
36 Richmond Terrace Suite 205
Staten Island, NY 10301
BLOCK, Senior District Judge:
Plaintiff Justin Williams alleges that the New York City Housing Authority
(“NYCHA”) improperly terminated his federally-funded housing assistance, in violation
of federal and city anti-discrimination laws and his right to Due Process. Defendants have

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moved to dismiss Williams’ claims for declaratory and injunctive relief on the grounds that
he lacks standing. For the following reasons, that motion is denied.
I.
The Section 8 Existing Housing Program (“Section 8”) is a federal program
that provides rent subsidies to low-income tenants in private housing.1 In New York City,
a substantial portion of the subsidies are administered by NYCHA, a public housing
agency.2 Tenants must annually recertify their eligibility.
Williams, who is blind, has received a Section 8 subsidy through NYCHA
since 1995 and has resided in the same Staten Island apartment since 1999. In his initial
application, he informed NYCHA of his disability. Nevertheless, he has never received a
copy of his Section 8 voucher, recertification notice and forms, or any other NYCHA-issued
information in Braille, audio recording, or another format accessible to him.
In October 2009, NYCHA staff, for the first time, informed Williams that they
were unable to help him complete his annual recertification. They also informed him that
he could apply for a transfer as a result of housing code violations in his apartment, which

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These facts are drawn from the amended complaint and, for the purpose of this motion,
the Court accepts the complaint’s allegations as true. See Weixel v. Board of Educ., 287 F.3d
138, 145 (2d Cir. 2002). Facts are also taken from additional evidence submitted by the
parties, which the Court may consider in resolving the jurisdictional issue. See J.S. ex rel.
N.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004).
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Defendant John B. Rhea is being sued in his official capacity as Chairman of NYCHA.
The Court will refer to defendants collectively as “NYCHA.”
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he did.3 In February 2010, Williams, hoping to discover the status of the transfer request,
visited a NYCHA office and learned that his Section 8 subsidy had been terminated as of
December 31, 2009.
Williams commenced this action in November 2010. On January 6, 2011,
NYCHA restored him to the Section 8 program and issued a transfer voucher. Williams
informed them that audio CD was his preferred form of communication. In November
2011, NYCHA approved a Section 8 subsidy for a new apartment.

The agency’s

communications with him have continued to be in the form of conventional written
documents, which Williams cannot read without assistance.
The complaint alleges that NYCHA has failed to provide Section 8 materials
and notices in a format accessible to Williams, otherwise provide reasonable
accommodation for his disability or notify him of his right to such accommodation, and
that this failure is in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12131 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., the Fair Housing Act,
42 U.S.C. § 3601 et seq., the New York City Human Rights Law, N.Y. Admin. Code § 8-101
et seq., the United States Constitution’s Due Process Clause, federal housing regulations,
and a prior consent decree. Williams seeks (1) a declaration that NYCHA has a duty to
provide meaningful access to Section 8 information in formats accessible to the blind and

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Landlords who lease to Section 8 tenants enter into an agreement with NYCHA that they
will comply with certain housing quality standards. If a landlord fails to properly maintain
the apartment, the Section 8 subsidy to the landlord is suspended and NYCHA offers the
tenant an opportunity to transfer to another apartment.
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visually impaired; (2) an injunction requiring information to be conveyed to the blind and
visually impaired in an accessible format; and (3) damages, attorneys’ fees and costs.
II.
A. Initial standing to seek prospective relief
To establish standing, as required by Article III of the Constitution, a plaintiff
must “have suffered an injury in fact – an invasion of a legally protected interest which is
(a) concrete and particularized; and (b) actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also City of Los
Angeles v. Lyons, 461 U.S. 95, 101-102 (1983). Thus, in order to establish standing for
prospective relief, “a plaintiff must show a likelihood that he will be injured in the future.”
Carver v. City of New York, 621 F.3d 221, 228 (2d Cir. 2010) (quoting Shain v. Ellison, 356 F.3d
211, 215 (2d Cir. 2004)). Williams, as the party asserting subject matter jurisdiction, has the
burden of proving it by a preponderance of the evidence. See Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). The parties do not dispute that Williams has standing to seek
damages to redress his alleged actual injury. However, “a plaintiff must demonstrate
standing separately for each form of relief sought.” See Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000).
NYCHA contends that Williams lacks standing to seek declaratory and
injunctive relief because he has not established a real and immediate threat of eviction or
termination of his Section 8 subsidy. The cognizable injury asserted, however, “may exist
solely by virtue of statutes creating legal rights, the invasion of which creates standing.”

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Fulton v. Goord, 591 F.3d 37, 41 (2009). The ADA and Rehabilitation Act both “confer the
right to be free from disability-based discrimination by public entities and federally funded
programs and, in so doing, confer standing for persons claiming such discrimination to
enforce that right.” Id. at 42. Being subjected to discrimination in violation of these
provisions is itself an injury sufficient to confer Article III standing. See Id.
The harm Williams faces is not loss of his subsidy, but the agency’s
discriminatory treatment. NYCHA does not dispute that Williams has been receiving
written communications regarding his subsidy for many years and that, as a Section 8
recipient, he will continue to receive such communications in the future. Thus, Williams
has standing to pursue prospective relief.
B. Mootness
Since this litigation commenced, NYCHA has reinstated Williams in the
Section 8 program and repeatedly represented that, in conformance with its policy of
reasonable accommodation, it “will assist plaintiff with completion of the rental package,
will provide him with the approval letter in CD form, and will assists him in completing
his annual recertification papers.” Def. Reply Mem. at 6. This does not moot Williams’
claims, however, as “[a] defendant's voluntary cessation of allegedly unlawful conduct
ordinarily does not suffice to moot a case.” Friends of the Earth, Inc., 528 U.S. at 174. Rather,
a case can be mooted by a defendant’s voluntary activities “only ‘if the defendant can
demonstrate that (1) there is no reasonable expectation that the alleged violation will recur
and (2) interim relief or events have completely and irrevocably eradicated the effects of

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the alleged violation.’” Seidemann v. Bowen, 499 F.3d 119, 128 (2d Cir. 2007) (quoting Granite
State Outdoor Advert., Inc. v. Town of Orange, Conn., 303 F.3d 450, 451 (2d Cir. 2002)).
The defendants have entirely failed to meet this burden. In fact, NYCHA has
not changed its practices as of July 12, 2012, when Williams’ most recent declaration was
filed; it continues to send him import notices and recertification materials in conventional
written format. Williams’ claims are therefore not mooted by the defendants’ action.
III.
Accordingly, defendants motion to dismiss is denied.
SO ORDERED.
s/ Judge Frederic Block
____________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 17, 2012

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