Nachmenson v. NYC Department of HRA Social Services et al

Filing 12

MEMORANDUM AND ORDER: As set forth in the Court's October 19, 2017 Memorandum and Order, the amended complaint is dismissed for failure to state a claim. See attached Memorandum and Order for details. The Clerk of the Court is respectfully requested to serve a copy of this Memorandum and Order on the pro se Plaintiff and to close the case. Ordered by Judge LaShann DeArcy Hall on 10/19/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NACHMAN NACHMENSON,

NOT FOR PUBLICATION

Plaintiff,
MEMORANDUM AND ORDER
-against17-CV-738 (LDH)(RML)
GLORIA DIAZ, Social Worker; JULO DE JESUS,
Supervisor; ANTHONY RIVERA, Supervisor
Assistant; JULIA DAVIS MOTEN, Associate
Commissioner, Transitional Family Services; YANIA
GONZALEZ, Program Analyst; DENISE WILLIAMS,
Program Analyst Assistant; SUSAN NAYOWITH,
Supervisor; ELDA QUIJANO; TREVOR JARDINE,
Program Administrator; CARL S. MYRICKS, Program
Administrator - Region IV; EFRAIN ECHEVARRIA,
Case Manager; NYDIA TORRES, Case Manager;
DANIKA CHRISTIANI, Director of Case Manager;
MARGIE FERNANDEZ, Case Manager;
ERICK JIMENEZ, Director of Case Manager;
MITZIE AGARD, Director in DHS; DOREEN HOWE,
Associate Commissioner Transitional Service;
XENIA MALDONADO; ANNETTE HOLM; and
JAHMANI HYLTON, Deputy Commissioner Family
Service,
Defendants.
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LASHANN DEARCY HALL, United States District Judge:
On February 9, 2017, Plaintiff Nachman Nachmenson, proceeding pro se, filed this action
against two New York City agencies. By Order dated June 15, 2017, the Court granted
Plaintiff’s request to proceed in forma pauperis and dismissed the complaint for failure to state a
claim, with leave to file an amended complaint. On July 10, 2017, Plaintiff filed his amended
complaint, in which he named twenty new individual Defendants (the “Individual Defendants”).
For the reasons that follow, the amended complaint is dismissed.

BACKGROUND
The original complaint alleged that “NYC” had failed to provide Plaintiff and his family
with a voucher for permanent housing adequate for twelve family members, had stolen or broken
his personal property, and had cursed Plaintiff and embarrassed his family members. (Compl.,
ECF No. 1.) In a subsequent letter dated April 2, 2017, Plaintiff described an incident on March
30, 2017, in which he was forcibly removed from the housing unit, and he, his wife, and their
baby were taken to the hospital. (Pl.’s Apr. 2, 2017 Letter, ECF No. 4.) Subsequently, the
family’s belongings were packed and moved to a new location, and the family was investigated
by the Administration for Children’s Services (“ACS”). (Id.)
In his amended complaint, Plaintiff alleges that the Individual Defendants abused him for
more than eight years while his family lived in a homeless shelter because Plaintiff is an
Orthodox Jewish Rabbi. (Am. Compl. 11, ECF No. 10.) Plaintiff alleges certain Defendants
requested paperwork to assist Plaintiff in obtaining housing, but failed to provide him with
housing solutions for eight years. (Id.) Instead, he alleges, Defendants tried to transfer
Plaintiff’s family to other shelters. (Id.) Plaintiff opposed the transfers because he did not want
his children to go to a different school. (Id. at 11-12.)
Plaintiff raises a number of issues concerning the treatment of his family at the shelter.
For example, Plaintiff asserts that Defendant Julo de Jesus once denied him permission to build a
sukkah. 1 (Id. at 12.) When Plaintiff later built a sukkah in the shared backyard, de Jesus told his
assistant to break it down. (Id.) Plaintiff also alleges that another year, de Jesus told neighbors
to throw things on the sukkah to bother Plaintiff and ruin the holiday. (Id.) In addition, Plaintiff
alleges that workers at the shelter stole his mail, and that Defendants Yanya Gonzalez and

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A sukkah is a temporary shelter constructed for use during the week-long Jewish festival of Sukkot.
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Danika Christiani inspected his family’s dwelling unit “for no reason.” (Id.) Plaintiff also
alleges that workers removed unplugged refrigerators and a freezer from Plaintiff’s unit and told
Plaintiff that he was not permitted to keep them. (Id.)
On March 29, 2016, Defendant Carl S. Myricks invited Plaintiff to a conference to assist
him with obtaining housing. (Id. at 11.) Plaintiff asserts that Myricks threatened to open a case
with ACS if Plaintiff did not talk to him about a pending lawsuit Plaintiff had filed. (Id.) The
family was later investigated by ACS in April and May of 2016, but that investigation was later
dropped. (Id.)
In January 2017, Plaintiff was informed that the shelter at St. John’s Place would be
closed on March 31, 2017, and all of its residents would be transferred to other shelters. (Id. at
12.) Plaintiff states that he received a housing voucher for $1200.00 in February 2017, but that
he could not find housing for his family on that budget. (Id.) Plaintiff further alleges that, only
days before the March 31, 2017 deadline, he received a voucher for $3600. (Id.) Plaintiff states
that he went to housing court to postpone the departure from the shelter. (Id.) On March 30,
2017, Defendant Mitzie Agard “came with police officers and ACS agents.” (Id.) Plaintiff was
handcuffed, and he and his child were taken away to the hospital in separate ambulances. (Id.) 2
Plaintiff asserts that the hospital delayed in providing the child with kosher food and did not
respect Jewish culture. (Id.) Plaintiff alleges that workers removed Plaintiff’s belongings from
his shelter unit and broke or failed to return certain items. (Id.) Plaintiff also alleges that
Defendant Agard issued an abusive evaluation and opened an ACS case against Plaintiff a week

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In the April 2, 2017 letter, Plaintiff states that, during the incident on March 30, 2017, both his wife and baby were
held in the hospital for more than an hour and that all three were released from the hospital. (Pl.’s Apr. 2, 2017
Letter, ECF No. 4.) The letter suggests that the Department of Homeless Services packed and moved the family’s
belongings to a new shelter while the family was away. (Id.)
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before Passover because Plaintiff and his family are Jewish. (Id.) 3 On July 10, 2017, Plaintiff
filed a letter addressed to the Honorable Robert M. Levy, in which he alleged that two of his ten
children were not receiving childcare and could not “go to camp like all kids.” (July 10, 2017
letter, ECF No. 11.) Plaintiff seeks to have the Defendants terminated from their positions and
requests $200 million in damages. (Am. Compl. 13.)
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis
action where it is satisfied that the action “(i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” Pro se complaints are held to less stringent standards than pleadings drafted
by attorneys, and courts are required to read pro se complaints liberally and interpret them as
raising the strongest arguments they suggest. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’”
(internal citations omitted)); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-93
(2d Cir. 2008) (When “[a] plaintiff proceeds pro se, . . . a court is obliged to construe his
pleadings liberally”). If a liberal reading of the complaint “gives any indication that a valid
claim might be stated,” the court must grant leave to amend the complaint. Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000); see also Ashmore v. Prus, 510 F. App’x 47, 48 (2d Cir. 2013)
(summary order) (“District courts should generally not dismiss a pro se complaint without

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Plaintiff’s wife, Guela Nachmenson, filed a separate case that included similar allegations about an ACS
investigation against her husband. (Compl. at 6, Nachmenson v. Admin. for Children’s Servs, No. 17-CV-3633
(WFK) (LB), ECF No. 1.) That case was dismissed for failure to state a claim. 2017 WL 2711931 (E.D.N.Y. June
22, 2017).

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granting the plaintiff leave to amend.”). At the pleadings stage, the court must assume the truth
of “all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-79
(2009)). The complaint must plead sufficient facts to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
DISCUSSION
By order dated June 15, 2017, the Court dismissed Plaintiff’s original complaint for
failure to state a claim. Specifically, the Court noted that Plaintiff had failed to state a claim for
impermissible discrimination under the Fair Housing Act (“FHA”) because he had not alleged
that he and his family suffered disparate impact or disparate treatment in the conditions of their
rent or the provision of services or facilities. (June 15, 2017 Mem. and Order 4, ECF No. 9.)
The Court further observed that Plaintiff had not identified any other basis for this Court’s
subject matter jurisdiction. (Id.) The Court granted Plaintiff thirty days to file an amended
complaint. (Id. at 5.)
The amended complaint fails to cure the deficiencies of the original complaint. Liberally
construed, the amended complaint asserts that Defendants: (1) failed to provide permanent
housing for Plaintiff’s family; (2) inspected Plaintiff’s family’s unit in the homeless shelter and
established and enforced restrictions on the use of his unit and surrounding spaces;
(3) commenced an ACS investigation against Plaintiff, forcibly removed him from the home, and
temporarily excluded him from the home while the investigation was pending; and (4) moved
Plaintiff’s belongings when the shelter closed and damaged or failed to return some of them.
The Court construes these claims as alleging violations of the FHA and Plaintiff’s right to due
process under the Fourteenth Amendment. The Court addresses each of these allegations in turn.

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As to Defendants’ alleged failures with respect to Plaintiff’s housing, in its June 15, 2017
Order, the Court carefully considered Plaintiff’s housing claim and explained that Plaintiff had
no constitutional right to housing “of a particular quality.” (Mem. and Order 3, ECF No. 9
(citing Lindsey v. Normet, 405 U.S. 56, 74 (1972)). Moreover, the Court found that Plaintiff had
not sufficiently alleged disparate impact or disparate treatment in the provision of services of
facilities, as required to plead a violation of the FHA. (Id. at 4.) The Court gave Plaintiff an
opportunity to demonstrate that his allegations of anti-Semitism were related to discrimination in
housing. (Id. at 4-5.) The amended complaint repeats the same claim that the Court previously
determined was deficient. Plaintiff claims that he and his family were “abused” because of their
religion, but he still does not include specific allegations that Defendants’ alleged religious
prejudice had any actual impact on Plaintiff’s application for a housing voucher or the provision
of any other services. Accordingly, Plaintiff’s housing claim fails to state a claim for violation of
his constitutional rights.
Plaintiff also complains that Defendants inspected his unit, removed prohibited items,
and prevented him from erecting a sukkah on shelter property. Again, Plaintiff has not
established that these actions regulating use and safety in homeless shelters violated any
constitutional rights or otherwise implicated federal laws or causes of action.
Plaintiff further alleges that Defendants commenced an ACS investigation and
handcuffed and forcibly removed him from the unit on March 30, 2017. Plaintiff has not alleged
that the investigation violated his constitutional rights. Indeed, although parents enjoy a
constitutionally protected interest in their family integrity, this interest is counterbalanced by the
compelling governmental interest in the protection of minor children, particularly in
circumstances where the protection is considered necessary as against the parents themselves.

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See Wilkinson v. Russell, 182 F.3d 89, 103-04 (2d Cir. 1999) (balancing interest in family
integrity against interest in protection of children). The Court of Appeals for the Second Circuit
“has adopted a standard governing case workers which reflects the recognized need for unusual
deference in the abuse investigation context.” Id. at 104. New York’s Child Protective Services
Act holds ACS responsible for investigating complaints of suspected child abuse, neglect, and
maltreatment, and provides specific procedures for investigating complaints. N.Y. Comp.
Codes, R. and Regs. tit. 18, § 432.2(b)(1). In this case, Plaintiff has not suggested that ACS
failed to follow the proper procedures for investigating complaints or protecting potentially
vulnerable children. Rather, Plaintiff alleges that the investigation prevented him from
celebrating Passover with his family, and that it “ruined [his] holiday.” Plaintiff has not
established, however, that a temporary separation during an investigation into child abuse
allegations violated his constitutional rights.
Finally, Plaintiff asserts that his belongings were packed and moved on the day before the
shelter was to be vacated, and that some of his belongings were damaged or lost. The Fourteenth
Amendment protects individuals from the deprivation of property without due process of law.
However, in order to bring a Fourteenth Amendment claim, a plaintiff must show either (1) that
an “established state procedure” deprived him of property “without according him proper
procedural safeguards,” Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982), or (2) that
“random and unauthorized conduct” of a state employee resulted in the intentional deprivation of
property and that “a meaningful postdeprivation [state] remedy for the loss [was not] available.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, deprivation of property is only actionable in
federal court if the state does not provide procedural safeguards or an adequate post-deprivation
remedy for the loss. Parratt v. Taylor, 451 U.S. 527, 542-43 (1981), overruled in part on other

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grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Morello v. James, 810 F.2d 344,
347 (2d Cir. 1987) (“[S]ection 1983 [can]not be made a vehicle for transforming mere civil tort
claims into constitutional injuries.”). Here, Plaintiff has not described any efforts he made to
seek compensation or return or alleged that such remedies do not exist through state agencies and
courts. Accordingly, Plaintiff’s personal property claims are dismissed.
CONCLUSION
For the foregoing reasons, the amended complaint is dismissed for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith and therefore in forma pauperis status is denied
for purpose of an appeal. Coppedge v. United States, 269 U.S. 438, 444-45 (1962). The Clerk of
Court is directed to enter judgment and close this case.
SO ORDERED.

/s/ LDH_________________
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
October 19, 2017

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