Faccio et al v. F. et al

Filing 37

MEMORANDUM-DECISION and ORDER - That defendants' 32 Motion for Summary Judgment is GRANTED. That the 1 Complaint is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 8/22/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DANIEL FACCIO et al.,
Plaintiffs,

1:10-cv-785
(GLS/RFT)

v.
ROBERT J. LANDRY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Daniel Faccio
C.F.
A.F.
D.F.
Pro Se Plaintiffs
P.O. Box 1724
Kingston, NY 12402
FOR THE DEFENDANTS:
Pennock Law Firm, PLLC
258 Ushers Road, Suite 204
Clifton Park, NY 12065

JOHN H. PENNOCK, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs pro se Daniel Faccio, C.F., A.F., and D.F. commenced this
action alleging, among other things, statutory and constitutional violations

against defendants Robert J. Landry, City of Glens Falls Housing Authority
(GFHA), and Mary St. Denis1 related to GFHA’s administration of the
Section 8 Housing Choice Voucher Program (HCVP). (See Compl., Dkt.
No. 1.) Pending is defendants’ motion for summary judgment seeking
dismissal of the Complaint. (See Dkt. No. 32.) For the reasons that follow,
the motion is granted.
II. Background
A.

Facts2
In 2008, GFHA, a local entity that administers the HCVP, issued a

Section 8 housing voucher to Faccio, which he used to subsidize the rental
of an apartment in the City of Hudson Falls. (See Defs.’ Statement of
Material Facts (SMF) ¶ 13, Dkt. No. 32, Attach. 2; Dkt. No. 32, Attach. 6 at
42, 44, 46-47.) Approximately one year later, the roof of that dwelling
collapsed due to a leak. (See Dkt. No. 32, Attach. 6 at 48-50.) In light of
these facts, Faccio filed a housing discrimination complaint with the

1

The Clerk is instructed to amend the docket to reflect the proper
spelling of Mary St. Denis’ surname.
2

Pursuant to N.D.N.Y. L.R. 7.1(a)(3), the court deems admitted
defendants’ statement of material facts, which are properly supported and
unopposed.
2

Department of Housing and Urban Development (HUD) alleging that GFHA
and Landry, executive director of GFHA, “refused to make the necessary
repairs to his apartment . . . [and] renew his voucher.” (Dkt. No. 32, Attach.
11 at 3; see Defs.’ SMF ¶ 10.) The complaint was referred to the New York
State Division of Human Rights, which found no unlawful discriminatory
practice and dismissed it. (See Dkt. No. 32, Attach. 12.)
Thereafter, Faccio, his wife C.F., and children A.F. and D.F. moved
into an apartment located at 32 Cooper Street in the City of Glens Falls;
part of the rent was subsidized by the HCVP. (See Defs.’ SMF ¶ 27; Dkt.
No. 32, Attach. 6 at 59-61.) Black mold was eventually discovered in that
apartment, which forced plaintiffs to move to another HCVP subsidized
apartment located at 9 Traver Street in the City of Glens Falls. (See Defs.’
SMF ¶¶ 26, 28-29.) Plaintiffs were again rousted from their
apartment—this time “the landlord terminated the lease to correct a shared
electric meter problem,” and plaintiffs were ultimately evicted. (Id. ¶ 30.)
Related to the foregoing, Faccio also claims that GFHA, Landry, and St.
Denis, an employee of GFHA, made complaints to the police that led to him
being falsely arrested. (See Dkt. No. 32, Attach. 7 at 50; Defs.’ SMF ¶¶ 3435.)
3

B.

Procedural History
Plaintiffs filed their largely incomprehensible Complaint in July 2010,

alleging a host of claims against defendants. (See Compl. at 3.) Following
joinder of issue, (see Dkt. No. 15), and discovery, which included
depositions of Faccio and C.F., (see Dkt. No. 32, Attachs. 6-8), defendants
moved for summary judgment, (see Dkt. No. 32). Despite being provided
with notice that explained the consequences of failing to respond to the
pending motion by both defendants and the court, (see Dkt. No. 32, Attach.
13; Dkt Nos. 34-35), and being granted an extension of time to do so, (see
Dkt. No. 36), plaintiffs have filed no response to the motion.
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).3
3

To the extent that defendants’ motion for summary judgment is
based entirely on plaintiffs’ Complaint, “such a motion is functionally the
same as a motion to dismiss for failure to state a claim under [Fed. R. Civ.
P.] 12(b)(6). As a result, ‘[w]here appropriate, a trial judge may dismiss for
failure to state a cause of action upon motion for summary judgment.’”
Baum v. Northern Dutchess Hosp., 764 F. Supp. 2d 410, 416 (N.D.N.Y.
2011) (quoting Schwartz v. Compagnie Gen. Transatlantique, 405 F.2d
4

IV. Discussion
Defendants argue that they are entitled to summary judgment and,
accordingly, plaintiffs’ Complaint should be dismissed. (See generally Dkt.
No. 32, Attach. 1 at 3-9.) Specifically, defendants contend that: (1) any
state law claims must be dismissed for failure to file a notice of claim
pursuant to N.Y. Pub. Hous. Law § 157(1) (McKinney 1989); (2) plaintiffs
have failed to allege or prove that GFHA promulgated an unconstitutional
custom or policy; (3) plaintiffs failed to plead facts demonstrating that they
were treated differently than other similarly situated individuals; (3)
defendants had no personal involvement in any arrest of Faccio; and (4)
Landry and St. Denis are entitled to qualified immunity. (See id.) The court
generally agrees with defendants.
First, liberally construing the Complaint, as the court must, see
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006),
plaintiffs allege facts suggestive of a host of federal and state causes of
action. (See Compl. at 3.) In particular, plaintiffs explain that they bring
their claims “under the Federal Constitution, federal law, the New York
State Constitution, New York State Law, and the common law.” (Id.) The
270, 273 (2d Cir. 1968)).
5

court surmises the following federal causes of action under 42 U.S.C.
§ 1983: (1) a Monell claim; (2) an equal protection violation; and (3) a claim
of retaliation.4 (See id.) The Complaint also appears to assert a claim of
race-based discrimination pursuant to 42 U.S.C. § 1981, violations of the
New York Constitution, New York Human Rights Law, and New York Civil
Rights Law, and state common law claims of intentional infliction of
emotional distress and defamation of character.5 (See id.)
A.

Federal Claims
1.

Section 1983

42 U.S.C. § 1983 “creates a remedy for violations of federal rights
committed by persons acting under color of state law.” Haywood v. Drown,
556 U.S. 729, 731 (2009). As set forth above, plaintiffs’ complaints warrant
further investigation of three potential claims under section 1983. For the

4

Plaintiffs’ claim of “retaliation” is construed and treated as attacking
Faccio’s arrest as explained in the Complaint. (See Compl. at 3.) It is
clear that plaintiffs have not sufficiently pleaded a First Amendment
retaliation claim and, thus, the court will not analyze their Complaint as
though they have. See Wrobel v. Cnty of Erie, No. 10-5179-CV, 2012 WL
3104529, at *3 (2d Cir. Aug. 1, 2012) (reviewing the requirements of a
First Amendment retaliation claim).
5

To the extent that any other potential claims could be gleaned from
the Complaint, none would meet the pleading requirements of Fed. R. Civ.
P. 8(a). See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
6

reasons that follow, however, none are viable.
First, plaintiffs allege “negligent supervision of [GFHA] staff and
offices,” which hints at a potential Monell claim. (Compl. at 3.) A
municipality may be liable for the constitutional violations of its employees
provided that any such violations occurred pursuant to an official policy or
custom. See Mayo v. Cnty. of Albany, No. 07-cv-823, 2009 WL 935804, at
*2 (N.D.N.Y. Apr. 3, 2009); see also Monell v. Dep’t of Soc. Servs. of N.Y.,
436 U.S. 658, 692 (1978). A successful claim of municipal liability under
section 1983, therefore, requires the plaintiff “‘to plead and prove three
elements: (1) an official policy or custom that (2) causes the plaintiff to be
subjected to (3) a denial of a constitutional right.’” Zherka v. City of N.Y.,
No. 10-5059-cv, 2012 WL 147914, at *1 (2d Cir. 2012) (quoting Wray v.
City of N.Y., 490 F.3d 189, 195 (2d Cir. 2007)).
By making “no factual allegations that would support a plausible
inference that [municipal] ‘policies’ or ‘customs’ caused [any] violation[] of
[their] rights,” plaintiffs have failed to state a Monell claim. Missel v. Cnty.
of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009). The Complaint makes no
reference to a policy or custom on the part of any defendant, see id.; Berry
v. Vill. of Millbrook, 815 F. Supp. 2d 711, 722-23 (S.D.N.Y. 2011), and
7

plaintiffs have offered nothing to demonstrate an issue of fact necessitating
denial of the motion. Thus, dismissal is appropriate.
Next, plaintiffs claim discrimination based on race. Specifically, the
Complaint suggests that defendants failed to correct the host of unfortunate
problems that plaintiffs experienced in their several apartments because of
plaintiffs’ race. (See id. at 1-2.) The factual allegations in the Complaint,
however, do not support a violation of the Equal Protection Clause. As
applicable here, to establish an Equal Protection Clause violation, “a
plaintiff must demonstrate that he was treated differently than others
similarly situated as a result of intentional or purposeful discrimination” and
“that the disparity in treatment cannot survive the appropriate level of
scrutiny.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). Thus, the
plaintiff must plead that other similarly situated individuals—who are
outside of the protected class to which the plaintiff belongs—have been
treated differently so that discriminatory motive may be inferred. See
Brisbane v. Milano, 443 F. App’x 593, 594-595 (2d Cir. 2011).
Here, plaintiffs pleaded no facts to support even an inference that
other similarly situated individuals were treated differently by any
defendant. Instead, the Complaint, in conclusory fashion, merely asserts
8

that defendants are “racist” and “prejudice [sic] against [plaintiffs].” (Comp.
at 1, 3.) Dismissal is therefore required.
Lastly, plaintiffs nominally claim “retaliation,” which implicitly resulted
in Faccio’s arrest and incarceration after plaintiffs filed their housing
discrimination complaint with HUD. (See id. at 3.) This claim fails for lack
of personal involvement. “‘It is well settled in this Circuit that personal
involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under [section] 1983.’” Farrell v.
Burke, 449 F.3d 470, 484 (2d Cir. 2006) (quoting Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994)). Mere assertions and conclusions of law do not
suffice to demonstrate that a defendant was personally involved. Dorsey v.
Fisher, No. 9:09–CV–1011, 2010 WL 2008966, at *6 (N.D.N.Y. May 19,
2010).
Here, it is not clear that defendants violated any constitutional right in
the first instance, however, there is no allegation whatsoever that any
defendant herein played a role in falsely arresting and incarcerating Faccio.
While Faccio explained during his deposition that defendants “started a
chain reaction that forced him to move from the Glens Falls area,” and he
is of the belief that his arrest emanated from GFHA filing “false charges
9

against [him],” no defendant in this case participated in his arrest. (Defs.’
SMF ¶¶ 34, 37; see Dkt. No. 32, Attach. 7 at 52.) Because it is readily
apparent that defendants were not personally involved in the alleged
constitutional violation, plaintiffs’ “retaliation” claim, which like all of their
other claims seeks relief in the form of damages, is also dismissed.6 (See
Compl. at 3.)
2.

Section 1981

To the extent that the Complaint can be construed as alleging facts
suggestive of purposeful discrimination based on race pursuant to 42
U.S.C. § 1981, for the same reasons that a section 1983 claim alleging a
violation of the Equal Protection Clause fails, it is also untenable. Indeed,
“[s]ection 1981 also prohibits only intentional racial discrimination, and thus
has the same pleading standards as the Equal Protection Clause.”
Brisbane, 443 F. App’x at 594. In light of the foregoing conclusion that the
Complaint—even when read with the utmost liberality—is insufficient to
establish a colorable Equal Protection Clause violation, it is clear that
plaintiffs have not alleged a viable section 1981 claim.

6

It is also noted that “that any injury caused by the arrest was
suffered only by Faccio.” (Dkt. No. 33 at 9, 1:10-cv-698.)
10

B.

State Law Claims
Inasmuch as the court can muster from the Complaint any causes of

action under state law, it declines to exercise supplemental jurisdiction over
them. “Although a federal court has discretion to retain jurisdiction over
state law claims after the dismissal of the federal claims that created
original jurisdiction, ‘where, as here, the federal claims are eliminated in the
early stages of litigation, courts should generally decline to exercise
pendent jurisdiction over remaining state law claims.’” Clark v. Dominique,
798 F. Supp. 2d 390, 408 (N.D.N.Y. 2011) (quoting Klein & Co. Futures,
Inc. v. Bd. of Trade of N.Y., 464 F.3d 255, 262 (2d Cir. 2006)).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
32) is GRANTED; and it is further
ORDERED that the Complaint (Dkt. No. 1) is DISMISSED; and it is
further;
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties by certified mail.
11

IT IS SO ORDERED.
August 22, 2012
Albany, New York

12