Carter v. Bellevue Men's Shelter
Filing
35
OPINION AND ORDER re: 28 MOTION to Dismiss (and requesting a stay of discovery) filed by M. Etiene, Miss Ballard, Ms. Reid, City of New York. As set forth within, Defendants' motion to dismiss the Amended Complaint is grant ed in its entirety. Leave to amend is denied with one exception: for the first time in the Amended Complaint, Carter alleges that his "basic liberties" and Fourth Amendment rights were violated between December 15, 2011 and December 27, 201 1. (Am. Compl. 2.) As discussed, Carter provides no factual support for this allegation. Out of an abundance of caution because Carter is proceeding pro se, the Court will grant him limited leave to amend to add factual detail to this allegation if h e can do so in good faith. If Carter chooses to amend, he must do so within thirty days of the date of this Order. If he fails to submit a Second Amended Complaint within the time permitted and cannot show good cause to excuse such failure, all of hi s federal claims will be dismissed with prejudice. If he submits a Second Amended Complaint that includes any claims that go beyond scope of the permitted amendment, such claims will be dismissed. The Clerk of Court is directed to close the case, sub ject to reopening if Plaintiff files a Second Amended Complaint within thirty days. The Clerk of Court is also requested to terminate the motion pending at docket number twenty-eight (28). 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 pauper is status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438 (1962). SO ORDERED. (See Order.) (Signed by Judge Ronnie Abrams on 9/30/2014) (ajs)
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LS DC-SD NY
DOCUMENT
ELECTRONICALLY FILED.
I DOC#:_.___ _ _ _ __
ANDERSON CARTER,
1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DA TE FILED: cl/ '1:)1 P-j
'
'
Plaintiff,
No. 13-cv-1839-RA
-v-
OPINION AND ORDER
CITY OF NEW YORK, MS. REID, DEBORAH:
ROBERSON, MS. BALLARD, MS. ETIENE,
RICH MILLER, JOHN DOE, JOHN DOE, and
JANE DOE, in their individual and official
capacities,
Defendants.
---------------------------------------------------------- )(
RONNIE ABRAMS, United States District Judge:
Plaintiff Anderson Carter brings this action pursuant to 42 U.S.C. § 1983 and Title II of the
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131, et seq., against the City of
New York and Bellevue Men's Shelter employees Yvonne Ballard, Jane Etienne, Eunice Reid,
and an unidentified John Doe. 1 Before the Court is Defendants' motion to dismiss the Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. For the reasons stated below, the motion is granted.
BACKGROUND
In December 2011, Carter resided at the New York City Department of Homeless
Services' Bellevue Men's Shelter ("Bellevue") in Manhattan. (Am. Compl. 2.) 2 Carter alleges
1
Carter also asserted claims against two employees of Renaissance Men's Shelter and an employee of FJC Security
Services, which provides security for Renaissance (collectively "Renaissance Defendants"). As discussed below,
Judge Brian Cogan of the Eastern District of New York, to whom this action was previously assigned, dismissed
Carter's claims against these Defendants, and they are no longer parties to this action. (Dkt. 9.) Accordingly, the
Court will not address the allegations against them.
2
Citations to the Amended Complaint reflect the pagination assigned by the Court's Electronic Case Filing ("ECF")
system.
that Defendant Eunice Reid denied him "access to mail and ... the courts" and that "[t]he City of
New York denied [him] basic liberties and [F]ourth [A]mendment violation on December 15-27."
(Id.) He also alleges that on December 29, 2011, an employee at Bellevue, an unnamed John Doe
Defendant, signed for a Federal Express ("FedEx") letter containing a $500 settlement check from
a law group at New York Law School, which had been assisting him in an unrelated employment
discrimination action.
(Id. 2-3.)
Carter contends that Yvonne Ballard and Jane Etienne,
employees at Bellevue, refused "to check to see who signed" for the letter, which caused him
"great hardship and stress," ultimately resulting in a "breakdown." (Id.) He further asserts that he
suffers from Schizoaffective disorder and that he "explained to [Etienne] and [Ballard] that [he
had] mental disabilities and ... need[ ed] help, and they refused and attempted to put [him] under
further duress." (Id. 3.)
In addition to these allegations, Carter claims that insects and rodents infested his living
quarters at Bellevue during his stay there, in or about December 2011 and January 2012, when he
was transferred to Renaissance Men's Shelter. 3 Carter seeks $750,000 from the City and $500,000
from Reid.
He also requests that the Court ensure that "the Defendants . . . adhere to the
[Fourteenth] Amendment." (Id. 8-9.)
PROCEDURAL HISTORY
On November 30, 2012, Carter commenced this action in the Eastern District of New
York, asserting claims against the City of New York; the Department of Homeless Services;
Bellevue Men's Shelter and one of its employees; and Renaissance Men's Shelter, two of its
3
Although Carter asserts that he was "put in cruel and inhumane conditions by the City of New York December 6,
2011 [through] May 2012[,] which resulted in high insect and rodents all over [his] living quarters at the [Bellevue]
Men[']s Shelter," he also alleges that he was transferred to Renaissance in "January 2012" and makes allegations
against Renaissance that he claims occurred between January and March 2012, suggesting that his reference to May
2012 with respect to his stay at Bellevue was in error. (See Am. Comp!. 3.)
2
employees, and an associated service provider (SCO Family Services) and security company (FJC
Security Services) (collectively "Renaissance Defendants"). (Comp!. 1.) On January 24, 2013,
Judge Brian Cogan of the Eastern District of New York dismissed sua sponte Carter's § 1983
claims against the Renaissance Defendants on the ground that they are private actors not subject to
liability under § 1983.
He further dismissed Carter's § 1983 claims against the City, the
Department of Homeless Services, and Bellevue Men's Shelter on the ground that Carter had
failed to allege a policy or custom that led to any of the alleged violations. Lastly, he dismissed
Carter's ADA claim on the ground that Carter had failed to allege that "he was denied the
opportunity to participate in or benefit from defendants' services, or was discriminated against by
defendants, because of his disabilities." Carter, 2013 WL 308685, at *3.
With leave of the Court, Carter amended his Complaint, raising similar claims against the
City and employees of Bellevue, Renaissance, and FJC, and adding two new Bellevue employees
(Yvonne Ballard and Jane Etienne), two John Does (an employee of Bellevue and an FJC guard),
and a Jane Doe (an employee of Renaissance) as Defendants. (Am. Comp!. 2-4.)
On March 18, 2014, Judge Cogan dismissed sua sponte Carter's claims against the
remaining Renaissance Defendants and transferred the action to this Court pursuant to 28 U.S.C.
§ 1391. (Dkt. 9.) On September 26, 2013, Defendants filed the instant motion to dismiss the
Amended Complaint. (Dkt. 28.)
DISCUSSION
A. Applicable Legal Standard
"In considering a motion to dismiss ... the court is to accept as true all facts alleged in the
complaint .... [and] draw all reasonable inferences in favor of the plaintiff." Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). "This rule applies with particular force where
3
the plaintiff alleges civil rights violations or where the complaint is submitted prose." Thompson
v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d
Cir. 1998)).
A pro se complaint "must be construed liberally with special solicitude and
interpreted to raise the strongest claims that it suggests. Nonetheless, a pro se complaint must
state a plausible claim for relief." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (internal
quotation marks and citation omitted).
B. ADA Claim
Carter's ADA claim is based on his allegation that, even though he informed Etienne and
Ballard of his Schizoeffective disorder, they refused to check who had signed for his FedEx letter
and that he suffered a breakdown as a consequence. (Am. Compl. 3.)
"In order to establish a violation under the ADA, plaintiffs must demonstrate that (1) they
are 'qualified individuals' with a disability; (2) that the defendants are subject to the ADA; and (3)
that plaintiffs were denied the opportunity to participate in or benefit from defendants' services,
programs, or activities, or were otherwise discriminated against by defendants, by reason of
plaintiffs' disabilities." Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
As Judge Cogan explained, Carter's "claim that due to his disability, he 'could not cope
with' the 'stress' of not receiving his mail on time is insufficient" because it "fails to allege facts
to establish that he was denied the opportunity to participate in or benefit from defendants'
services, or was discriminated against by defendants, because of his disabilities." Carter, 2013
WL 308685, at *3. Although it is true that in the Amended Complaint Carter alleges that he
explained his mental impairment to Etienne and Ballard and requested help locating the individual
who signed for his letter, he still fails to assert that "he was denied the opportunity to participate in
or benefit from [Bellevue' s] services ... or [was] otherwise discriminated against ... by reason of
4
[his] disabilit[y]."
Henrietta D., 331 F.3d at 272.
Moreover, his allegation that Ballard and
Etienne "attempted to put [him] under further duress" is conclusory and "not entitled to the
assumption of truth." Ashcroft v. Igbal, 556 U.S. 662, 664 (2009).
Accordingly, Carter's ADA claim is dismissed. 4
C. Section 1983 Claims
Liberally construing the Amended Complaint, Carter's § 1983 claims against the City and
individual defendants appear to be that Reid, Etienne, Ballard and the John Doe Defendant
interfered with his access to mail and the courts and deprived him of property without due process
of law; that he was put in "cruel and inhumane conditions" because his living quarters were
infested with insects and rodents; and that "[t]he City of New York denied [him] basic liberties
and [F]ourth [A]mendment violation on December 15-27." (Am. Compl. 2.) He also alleges that
the City "refused to put [Department of Homeless Services] police" at Renaissance. (Id. 5.)
1. City of New York
As Judge Cogan explained, "in order to sustain a claim for relief under 42 U.S.C. § 1983
against a municipal defendant such as the City of New York, a plaintiff must show the existence
of an officially adopted policy or custom that caused injury, a direct causal connection between
that policy or custom, and the deprivation of a constitutional right." Carter, 2013 WL 308685, at
*3 (quoting Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)). As with Carter's original
Complaint, his Amended Complaint "cannot reasonably be interpreted as alleging facts sufficient
to demonstrate that any alleged injury was caused by any policy or custom of the municipal
defendant, the City of New York." Id.
4
The ADA claim brought against Reid, Etienne, and Ballard in their individual capacities must be dismissed for the
additional reason that "[t]he ADA does not provide for individual capacity suits against state or city officials." Alster
v. Goard, 745 F. Supp. 2d 317, 337 (S.D.N.Y. 2010).
5
First, that two employees "refus[ed] to check to see who signed for a [F]ederal [E]xpress
envelope ... do[ es] not suggest a policy or custom as required by Monell." Id. (first alteration in
original) (internal quotations omitted).
Second, Carter's claim that his living quarters were infested with insects and rodents does
not implicate the Constitution. "[W]hen the State takes a person into its custody and holds him
there against his will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being." DeShaney v. Winnebago County Dep't of
Soc. Servs., 489 U.S. 189, 199-200 (1989). As a general matter, however, "[a]ccess to food and
shelter is not a constitutional right, nor is there any government obligation to provide adequate
housing." Richardson v. City of New York, 12 Civ. 2545 (WHP), 2013 WL 2124176, at *2
(S.D.N.Y. Apr. 17, 2013) (alteration in original) (quoting Reaves v. Dep't of Veterans Affairs, 08
Civ. 1624 (RJD), 2009 WL 35074 (RJD), at *3 (E.D.N.Y. Jan. 6, 2009)). Carter was not in
custody, nor does he allege that the City restricted his freedom of movement in any way. Cf.
Jacobs v. Ramirez, 400 F.3d 105, 107 (2d Cir. 2005) ("Having agreed to parole Jacobs to the
home to which he sought to be paroled, the state assumed the very limited duty of ensuring that it
did not require him to remain in a place that turned out, at least according to his allegations, to be
uninhabitable."). Moreover, as the cases involving complaints about conditions in public housing
demonstrate, a local agency's failure to remedy potentially hazardous living conditions does not
amount to a substantive due process violation. Allen v. N.Y.C. Hous. Auth., 10 Civ. 168 (CM)
(DF), 2012 WL 4794590, at *7 (S.D.N.Y. Sept. 11, 2012) (citing cases in which district courts
have rejected Fourteenth Amendment claims against "state actors ... accused of failing to remedy
6
mold conditions in public housing and ... a public school" by distinguishing between "inaction"
by the agency and the "actual creation of harm"). 5
Lastly, Carter's conclusory allegation that the City denied him "basic liberties and [F]ourth
[A]mendment violation on December 15-27," (Am. Comp!. 2), entirely fails to "satisfy the
pleading standards set forth in Igbal and Twombly," Nixon v. Blumenthal, 409 F. App'x 391, 393
(2d Cir. 2010). His claim that the City failed to put Department of Homeless Services police at
Renaissance also fails, as "a State's failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause." DeShaney, 489 U.S. at 197.
Accordingly, Carter's § 1983 claims against the City are dismissed.
2. Individual Defendants
"To succeed on a § 1983 claim, a plaintiff must show that the defendants, acting under the
color of state law, deprived him or her of a constitutional right." Walker v. Sankhi, 494 F. App'x
140, 142 (2d Cir. 2012).
Carter alleges that a John Doe employee of Bellevue signed for his FedEx letter and that
Ballard and Etienne impeded his access to that letter by refusing to investigate who had signed for
it.
(Am. Comp!. 2.) 6 Construing the Amended Complaint as a whole, it appears that Carter
intended to raise claims for the denial of his right of access to the courts and to the free-flow of
incoming and outgoing mail. The Court also construes the Amended Complaint to raise a claim
for deprivation of property without due process of law.
5
Additionally, "[f]or a substantive due process claim to survive a Rule 12(b)(6) dismissal motion, it must allege
governmental conduct that 'is so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience."' Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833,
847 n.8 (1998)). Carter's claim regarding insects and rodents does not do so here.
6
Although Carter alleges that Reid denied him "access to mail and ... the courts" as well, (Am. Comp!. 3), he does
not offer any facts supporting Reid's involvement in the incident. See Williams v. Smith, 781 F.2d 319, 323 (2d
Cir.1986) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award
of damages under§ 1983."). In any event, as discussed, the underlying allegations do not raise a claim under§ 1983.
7
First, to state a claim for denial of the right of access to the courts, a plaintiff must allege
"that a defendant caused 'actual injury,' i.e., took or was responsible for actions that 'hindered [a
plaintiffs] efforts to pursue a legal claim." Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.
1997) (alteration in original) (citations omitted) (quoting Lewis v. Casey, 518 U.S. 343, 351
(1996)).
The only injury Carter alleges is the loss of a settlement check, which "does not
constitute the frustration of Plaintiffs efforts to pursue a nonfrivolous claim, and therefore fails to
satisfy the actual injury requirement." Bellezza v. Holland, 730 F. Supp. 2d 311, 315 (S.D.N.Y.
2010).
To the extent that Carter intended to raise a separate First Amendment mail-interference
claim, this claim also fails. Access to mail claims are often litigated in the context of criminal, and
sometimes civil, confinement, where courts have recognized a First Amendment right to the "free
flow of incoming and outgoing mail." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) ("In
addition to the right of access to the courts, a prisoner's right to the free flow of incoming and
outgoing mail is protected by the First Amendment."); see also Ahlers v. Rabinowitz, 684 F.3d 53,
64 (2d Cir. 2012) (adapting the standard for analyzing censorship of mail in the prison context to
the civil commitment context).
Unlike prisoners, or civilly committed individuals, who are
dependent on their custodians for access to the mail system, Carter was a shelter resident and not
so constrained. In any event, Carter's allegation that he did not receive a single letter mailed to
him at the shelter and that two employees refused to help him locate it falls far short of stating a
First Amendment violation. See Davis, 320 F.3d at 351 ("[A]n isolated incident of mail tampering
is usually insufficient to establish a constitutional violation."); Dixie v. U.S. Postal Serv., 12 Civ.
112 (WL), 2012 WL 1455201, at
*
1 (N.D. Ind. Apr. 25, 2012) ("While censorship of his mail
based on its content could implicate the First Amendment, Dixie alleges only that some of his mail
8
was mishandled. 'The Constitution is a charter of negative liberties; it tells the state to let people
alone; it does not require the federal government or the state to provide services."' (quoting
Sandage v. Bd. of Commr's of Vanderburgh County, 548 F.3d 595, 596 (7th Cir. 2008)).
Lastly, the "[ d]eprivation of property by a state actor, whether intentional or negligent,
does not give rise to a claim under § 1983 so long as the law of that state provides for an adequate
post-deprivation remedy and the deprivation was the result of a 'random and unauthorized' act."
Dove v. City of New York, 99 Civ. 3020 (DC), 2000 WL 342682, at *2 (S.D.N.Y. Mar. 30, 2000).
It is well recognized that "New York provides an adequate post-deprivation remedy in the form of
state law causes of action for negligence, replevin, or conversion." Dove, 2000 WL 342682, at *2;
see Morello v. James, 810 F.2d 344, 34 7 (2d Cir. 1987) (emphasizing that § 1983 should "not be
made a vehicle for transforming mere civil tort claims into constitutional injuries").
Consequently, Carter cannot state a claim for deprivation of property under§ 1983.
Accordingly, Carter's § 1983 claims against the individual defendants are dismissed. 7
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint is
granted in its entirety.
Leave to amend is denied with one exception: for the first time in the Amended Complaint,
Carter alleges that his "basic liberties" and Fourth Amendment rights were violated between
December 15, 2011 and December 27, 2011. (Am. Compl. 2.) As discussed, Carter provides no
factual support for this allegation. Out of an abundance of caution because Carter is proceeding
7
The Court need not address whether the facts alleged in the Amended Complaint may be sufficient to state
cognizable state law claims; to the extent they do, the Court declines to exercise jurisdiction over them. See Pitchell
v. Callan, 13 F.3d 545, 54 7 (2d Cir. 1994) ("It is axiomatic that when all federal claims are eliminated prior to trial, a
court should decline to exercise jurisdiction over any remaining pendent state claims." (quoting Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
9
pro se, the Court will grant him limited leave to amend to add factual detail to this allegation if he
can do so in good faith.
If Carter chooses to amend, he must do so within thirty days of the date of this Order. If
he fails to submit a Second Amended Complaint within the time permitted and cannot show good
cause to excuse such failure, all of his federal claims will be dismissed with prejudice. If he
submits a Second Amended Complaint that includes any claims that go beyond scope of the
permitted amendment, such claims will be dismissed.
The Clerk of Court is directed to close the case, subject to reopening if Plaintiff files a
Second Amended Complaint within thirty days. The Clerk of Court is also requested to terminate
the motion pending at docket number twenty-eight (28).
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 pauper is status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.
Dated:
ft-//
September 30, 2014
New York, New York
Ronnie Abrams
United States District Judge
10
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