Caractor et al v. Housing Bridge 93rd Avenue Family Residence et al

Filing 11

ORDER: SO ORDERED that the 13-CV-3800 Amended Complaint and the 13-CV-7043 Complaint are consolidated into the 13-CV-3800 Action. The Clerk of the Court shall close the case bearing docket number 13-CV-7043. Furthermore, the 13-CV-3800 Amended Compl aint and the 13-CV -7043 Complaint are both dismissed with prejudice. The Court notes that plaintiffs have a history of filing lawsuits alleging violations of their constitutional rights while living at homeless shelters. See Caractor, et al. v. Salv ation Army of Greater N.Y, et al., No. 05-cv-1698 (SJF)(MLO) (E.D.N. Y. 2005); Caractor, et al. v. Davis-Moten, et al., No. 06-cv-5299 (SJF)(MLO) (E.D.N.Y. 2006); Caract or, et al. v. City of N.Y Dep't of Homeless Servs., 07-cv-1591 (SJF)(MLO) ( E.D.N.Y. 2007). Therefore, no further actions may be brought concerning the housing accommodations of plaintiffs without leave from the Court. The Clerk of Court is directed to close the 13-CV -3800 Action and to mail a copy of this order to the pros e plaintiffs. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiffs. Ordered by Judge Sandra J. Feuerstein on 4/2/2014. (Florio, Lisa)

D/F
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------)(

BISHOP WILLIAM B. CARACTOR,
REVEREND HELEN CLA Y-CARACTOR,

IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

*

APR 02 Z014

LONG ISLAND OFFICE

Plaintiffs,

ORDER
13-CV-3800 (SJF)(AKT)

-against-

*

HOUSING BRIDGE 93RD AVENUE FAMILY
RESIDENCE, MR. NOEL FRANCIS, Program
Director, MS. MAGARD, Director of Social
Services, MS. NICOLE WASHINGTON, Case
Manager, MS. S. EVANS, Housing Specialist,
Defendants.

---------------------------------------------------------------)(

BISHOP WILLIAM B. CARACTOR,

Plaintiff,
13-CV-7043 (SJF)(AKT)
-againstCITY OF NEW YORK DEPARTMENT OF
HOMELESS SERVICES, MICHELE OVESSEY,
CARL MYRICKS, Program Administrator,
PROGRAM ANALYST SHA YLA SIMON, jointly
and severally,
Defendants.

---------------------------------------------------------------)(
FEUERSTEIN, District Judge:
On July 8, 2013,pro se plaintiffs Bishop William B. Caractor and Reverend Helen Clay
Caractor (together, "plaintiffs") filed an in forma pauperis complaint in the case bearing docket
number 13-CV-3800 (SJF)(AKT) (the "13-CV-3800 Action") against Housing Bridge 93'd
Avenue Family Residence ("Housing Bridge"), Mr. Noel Francis, Ms. Magard, Ms. Nicole
Washington, and Ms. S. Evans (collectively, the "Housing Bridge defendants"), pursuant to 42
U.S.C. § 1983 ("Section 1983") and the Civil Rights Act of 1964 ("CRA"). By Order dated

November 22,2013, the Court granted plaintiffs' applications to proceed in forma pauperis and
dismissed the complaint with leave to amend on or before December 22,2013. On December
16,2013, plaintiffs timely filed an amended complaint ("13-CV-3800 Amended Complaint.").
On October 28, 2013, Bishop filed a new in forma pauperis civil rights complaint (the
"13-CV-7043 Complaint") in the United States District Court for the Southern District of New
York ("S.D.N.Y.") against the City ofNew York Department of Homeless Services
("NYCDHS"), Michele Ovesey, Carl Myricks, and program analyst Shayla Simon (collectively,
the "NYCDHS defendants") pursuant to Section 1983, the CRA and the Fair Housing Act
("FHA"), 42 U.S.C. § 3601 et seq. On December 10, 2013, the case was transferred from the
S.D.N.Y. to this Court and assigned docket number 13-CV-7043 (SJF)(AKT) (the "13-CV-7043
Action").
I.

Factual Background
The 13-CV-3800 Amended Complaint and the 13-CV-7043 Complaint are both difficult

to comprehend. While the 13-CV-3800 Amended Complaint is brought against the Housing
Bridge defendants and the 13-CV-7043 Complaint against the NYDHCS defendants, the two (2)
complaints allege largely the same claims arising from the same set of facts. Bishop, a sixty-five
(65) year old "consecrated Bishop and Presiding Prelate of Discovered Being Ministry
Incorporated" with medical conditions (diabetes, cancer, and high-blood pressure), along with
his wife and daughter, reside at Housing Bridge, which "operate[s] under the policies and
procedures established by [NYCDHS]." (13-CV-3800 Am. Compl. at 1-2; 13-CV-7043 Compl.
at I, 3). According to plaintiffs, while NYCDHS policy requires all clients to save thirty percent
(30%) of their net income and to meet with their case manager every two (2) weeks, plaintiffs
were required to save fifty percent (50%) of their gross income and to meet with their case
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manager weekly. (13-CV-3800 Am. Compl. at 2-3; 13-CV-7043 Compl. at 4). Plaintiffs further
allege that they were not permitted to submit documentation to establish their compliance with
the NYCDHS policies. (13-CV-3800 Am. Compl. at 3; 13-CV-7043 Compl. at 5). While
plaintiffs contend that "they were placed in non-compliance which can cause you to be expelled,
sanctioned or involuntarily transferred," plaintiffs do not allege to that they have been expelled,
sanctioned or involuntarily transferred. (13-CV-3800 Am. Compl. at 3). The relief sought in
both pleadings is $300,000 as well as injunctive relief barring defendants from violating federal
law. (13-CV -3800 Am. Compl. at 5; 13-CV -7043 Compl. at 6).
II.

Discussion
A. Application to Proceed In Forma Pauperis

Upon review of Bishop's declarations in support of his application to proceed in forma
pauperis in the 13-CV -7043 Action, the Court determines that Bishop's financial status qualifies

him to commence the action without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(l).
Therefore, Bishop's request to proceed in forma pauperis is granted.
B. Consolidation of the Complaints
Under Federal Rule of Civil Procedure 42, "[i]f actions before the court involve a
common question oflaw or fact, the court may: (1) join for hearing or trial any or all matters at
issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay." Fed. R. Civ. P. 42(a). "The trial court has broad discretion to
determine whether consolidation is appropriate." Johnson v. Celotex Corp., 899 F.2d 1281,
1284-85 (2d Cir. 1990). Consolidation is appropriate in order to serve the interests of judicial
economy. See, e.g., Jacobs v. Castillo, No. 09 Civ. 953, 2009 WL 1203942, at *3 (S.D.N.Y.
Apr. 23, 2009) ("Consolidation would further the goal of 'judicial economy' because discovery

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in each case is likely to be identical, motion practice and trial in the two cases would most likely
cover the same facts and some identical issues oflaw."). Specifically, consolidation of cases
with common questions of law or fact is favored "to avoid unnecessary costs or delay," Johnson,
899 F.2d at 1284, and to "expedite trial and eliminate unnecessary repetition and confusion."

Devlin, 175 F.3d at 130 (internal citations omitted).
Cases may be consolidated where, as here, there are different parties in the complaints.

See Werner v. Satterlee, Stephens, Burke & Burke, 797 F. Supp. 1196, 1211 (S.D.N.Y. 1992)
("The fact that there are different parties in this action does not mean this case should not be
consolidated."); see also Pirel/i Armstrong Tire Corp. Retiree Med Benefits Trust v. LaBranche
& Co., Inc., 229 F.R.D. 395,402 (S.D.N.Y. 2004) (explaining that consolidation is appropriate

even where certain defendants are named in only one of the complaints). Cases may also be
consolidated even where, as here, there are differences in the causes of action. See Kaplan v.

Gelfand, 240 F.R.D. 88,91 (S.D.N.Y. 2007) ("Differences in causes of action ... do not render
consolidation inappropriate if the cases present sufficiently common questions of fact and law,
and the differences do not outweigh the interests of judicial economy served by consolidation.").
The paramount concern is whether savings of expense and gains of efficiency can be
accomplished without sacrifice of justice. Johnson, 899 F.2d at 1285 ("Considerations of
convenience and economy must yield to a paramount concern for a fair and impartial trial.").
"The Second Circuit has long adhered to the first-filed doctrine in deciding which case to
dismiss where there are competing litigations. Where there are several competing lawsuits, the
first suit should have priority, absent the showing of balance of convenience or special
circumstances giving priority to the second." Kellen Co. v. Calphalon Corp., 54 F. Supp. 2d
218,221 (S.D.N.Y. 1999) (internal quotation marks, alterations, and citations omitted); accord

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Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir. 1991 ); First City Nat'/ Bank & Trust Co. v. Simmons,
878 F.2d 76, 79 (2d Cir. 1989). The first-filed rule seeks to conserve judicial resources and
avoid duplicative litigation. See Adam, 950 F.2d at 92; First City Nat 'l Bank, 878 F.2d at 80;
Kellen, 54 F. Supp. 2d at 221.
The 13-CV-3800 Amended Complaint and the 13-CV-7043 Complaint both purport to
allege violations of the plaintiffs' civil rights in connection with their continued housing at
Housing Bridge. Apart from the identity of the parties and the FHA claim in the 13-CV-7043
Complaint, the two (2) complaints are largely the same. The fact that the parties and claims are
not identical in the two (2) actions does not preclude a finding that the cases should be
consolidated. See Werner, 797 F.Supp. at 1211; Kaplan, 240 F.R.D. at 91. The Court concludes
that these differences do not outweigh the interests of judicial economy that would be served by
consolidation, given the common questions oflaw and fact in both cases. Accordingly, the Court
orders that these complaints be consolidated pursuant to Federal Rule of Civil Procedure 42 into
the first filed case, the 13-CV-3800 Action. The Clerk of Court is directed to: (I) consolidate
these actions, and (2) close the 13-CV-7043 Action. All future filings are to be docketed in the
13-CV-3800 Action.
C. Application of28 U.S.C. § 1915
Under the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B), a district court must
dismiss a complaint if it is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. It is
axiomatic that pro se complaints are held to less stringent standards than pleadings drafted by
attorneys. The Court is required to read a pro se complaint liberally, Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted), and to construe it "'to
raise the strongest arguments"' suggested. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
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(quoting Harris v. City ofNY., 607 F.3d 18,24 (2d Cir. 2010)). Moreover, at the pleadings
stage of the proceeding, 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 Ill, 124
(2d Cir. 2010), aff'd 133 S. Ct. 1659 (2013), (citingAshcroftv. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009)); see also Jackson v. Birmingham Bd. ofEduc., 544 U.S. 167, 171
(2005).
Nevertheless, a 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, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). While the plausibility standard "does not require detailed factual
allegations," it "demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft, 556 U.S. at 678. "A pleading that offers 'labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action will not do."' !d. (quoting Twombly,
550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of
'further factual enhancement."' !d. (quoting Twombly, 550 U.S. at 557); accord Pension Benefit
Guar. Corp. ex rel. Saint Vincent Catholic Med. Ctr. Ret. Plan v. Morgan Stanley Jnv. Mgmt.
Inc., 712 F.3d 705,717 (2d Cir. 2013).
I. 13-CV-3800 Amended Complaint

The 13-CV -3800 Amended Complaint contains very few minor additions, such as the
phrase "placed the plaintiffs in non-compliance," and the conclusory allegation that "Plaintiffs
have suffered humiliation, emotional stress and mental anguish as a result of the defendants
actions regarding their rights that are protected by the US Constitution Fourteenth Amendment
and the 1983 Civil Rights Act." (13-CV-3800 Am. Compl at 2). Notably missing from the 13CV -3800 Amended Complaint are the "Disparate Treatment," "Protected Class," and
"Memorandum of Law" sections that were included in the original complaint. Notwithstanding
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those changes, the 13-CV-3800 Amended Complaint is virtually identical to the initial
complaint. The 13-CV-3800 Amended Complaint fails to cure the pleading deficiencies of the
initial complaint set forth in this Court's November 22, 2013 order. Accordingly, plaintiffs' 13CV -3800 Amended Complaint is dismissed with prejudice.
2. 13-CV-7043 Complaint
As with plaintiffs' initial complaint in the 13-CV -3800 Action, the 13-CV-7043
Complaint generally alleges that "[p]laintiff(s) were met with disparate treatment" by the
NYCDHS defendants, but fails to plead any facts to support the speculative conclusions that any
alleged differential treatment was based on plaintiffs' membership in a protected class. 13-CV7043 Compl. at 4. See Ruston v. Town Bd. ofSkaneateles, 610 F.3d 55, 59 (2d Cir. 2010)
("Under Iqbal, factual allegations must be sufficient to support necessary legal conclusions," and
must "plausibly suggest an entitlement to relief."). Plaintiffs have failed to allege facts linking
the conduct complained of to a protected class. See, e.g., Kitchen v. Phipps Houses Grp. ofCos.,
380 F. App'x 99, 101 n.2 (2d Cir. 2010) (summary order) (affirming dismissal of discrimination
claims where plaintiff failed to "plead some facts that plausibly link [the conduct complained of]
... to race or disability bias"). Nor do plaintiffs allege any facts to support their conclusion that
"[t]o deny the plaintiff the right to purchase a home which is permanent housing is a violation of
the Fair Housing Act." 13-CV -7043 Compl. at 5. Accordingly, this Court is compelled to find
that dismissal is warranted.
Moreover, considering plaintiffs' failure to cure the deficiencies in the initial complaint
in the 13-CV-3800 Action, which is based upon the same facts as the 13-CV-7043 Action, the
Court concludes that leave to amend the 13-CV-7043 Complaint would be futile. See MetLife

Inv. USA Ins. Co. v. Zeidman, 734 F. Supp. 2d 304, 311 (E.D.N.Y. 2010), aff'd, 422 F. App'x
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589 (2d Cir. Sept. 19, 2011) (amendment would be futile "if the amended complaint would not
contain enough allegations of fact to state a claim for relief that is plausible on its face) (internal
quotation marks and citation omitted); Lashley v. Sposato, No. 13-CV-6343, 2014 WL 354669,
at *5 (dismissing claim with prejudice "where a proposed amendment would be futile").
Accordingly, the 13-CV-7043 Complaint is dismissed with prejudice.
III.

Conclusion
For the reasons set forth above, the 13-CV-3800 Amended Complaint and the 13-CV-

7043 Complaint are consolidated into the 13-CV-3800 Action. The Clerk of the Court shall
close the case bearing docket number 13-CV-7043. Furthermore, the 13-CV-3800 Amended
Complaint and the 13-CV-7043 Complaint are both dismissed with prejudice. The Court notes
that plaintiffs have a history of filing lawsuits alleging violations of their constitutional rights
while living at homeless shelters. See Caractor, eta!. v. Salvation Army of Greater N. Y, eta!.,
No. 05-cv-1698 (SJF)(MLO) (E.D.N. Y. 2005); Caractor, et al. v. Davis-Moten, et al., No. 06cv-5299 (SJF)(MLO) (E.D.N.Y. 2006); Caract or, eta!. v. City ofN.Y Dep't of Homeless Servs.,
07-cv-1591 (SJF)(MLO) (E.D.N.Y. 2007). Therefore, no further actions may be brought
concerning the housing accommodations of plaintiffs without leave from the Court. The Clerk
of Court is directed to close the 13-CV-3800 Action and to mail a copy of this order to the prose
plaintiffs.

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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21
(1962).
SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: April 2, 2014
Central Islip, New York

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