Azkour v. Bowery Residents Committee, Inc. et al

Filing 61

OPINION #105366 re: 27 MOTION to Dismiss filed by Tereen Llewelyn-Miller, Lawrence, Bowery Residents Committee, Inc., Angela Kedzior, Janet Forte. For the reasons discussed above, defendants' motion for judgment on the ple adings is granted, and the case is dismissed with prejudice. This opinion resolves the motion listed as item 27 on the docket. The Clerk of the Court is directed to terminate the motion and to close the case. SO ORDERED. (Signed by Judge Thomas P. Griesa on 3/23/2015) (ama) Modified on 3/24/2015 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------X
HICHAM AZKOUR,
Plaintiff,
v.

13 Civ. 5878 (TPG)

OPINION

BOWERY RESIDENTS' COMMITTEE, INC., et
al.,
Defendants.

--------------------------------------------X
Plaintiff Hi cham Azkour brings this action, pro se, against defendant Bowery Residents'
Committee, Inc. ("BRC"), as well as BRC staff members Lawrence a/k/a Muzzy Rosenblatt,
Janet Forte, Tereen Llewelyn-Miller, Kevin Martin, Angela Kedzior, and John and Jane Does 15 (collectively, "defendants").
In substance, plaintiff alleges that defendants improperly denied him proper housing,
public assistance benefits, and the right to his medical records. Plaintiff further alleges that
defendants failed to protect his person and property-namely, a laptop and software-from theft
by other BRC residents, or even actively participated in such theft. Plaintiff alleges that this
treatment was directed at plaintiff because he is an Arab. He asserts claims for deprivation of his
constitutional rights under a number of federal statutes: 42 U.S.C. §§ 1981, 1983, 1985(3), 1986,
and 2000d. Plaintiff brings further claims under 42 U.S.C. §§ 3604 and 3617, alleging both
intentional discrimination and disparate treatment or impact discrimination.

Finally, plaintiff

makes claims for gross negligence and negligent infliction of emotional distress under New York
state law.
Defendants move for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), or, in the alternative, for summary judgment and dismissal under Federal Rule
ofCivil Procedure 56. (Dkt. No. 27.)
For the reasons discussed below, the court declines to construe defendants' motion as a
motion for summary judgment.

However, the court grants the motion for judgment on the

pleadings on all counts.

THE COMPLAINT
The allegations in the complaint center on plaintiff's treatment while housed in a number
of BRC facilities. BRC is a private non-profit organization that provides housing and
nonresidential programming to thousands ofNew Yorkers. BRC employs over 650 staff, and
operates with a budget of over $60 million annually. (Compl.

~

25 .) Among other facilities,

BRC operates the Jack Ryan Residence, a 200-bed homeless shelter funded in part by the New
York City Department of Homeless Services ("DHS").

(~

27.) The Jack Ryan Residence

"serve[s] homeless men and women of all ages who have a history of mental illness and who are
seeking to attain or maintain stability in their mental health."

(~

28 (internal quotation marks

omitted).) The Jack Ryan Residence operates pursuant to a BRC contract with DHS, and is
licensed by the New York State Office ofTemporary and Disability Assistance. (!d.)
The named and unnamed individual defendants are all BRC employees working at the
Jack Ryan Residence.

(~~

31-32.) While the complaint is not entirely clear as to each individual

defendant's role, it appears that defendant Rosenblatt supervised the Jack Ryan Residence, and
defendant Kedzior worked as a psychiatrist serving BRC residents throughout New York. (~ 24.)
2

On June 9, 201 I, plaintiffwas referred to a BRC shelter called the Boulevard Residence.
(~

44.) While at the Boulevard Residence, plaintiff was diagnosed "with Post Traumatic Stress

Disorder and other mental illnesses."(~ 45.)
On September 9, 201 I, plaintiffwas transferred to the Jack Ryan Residence.

(~

48.) He

resided there until July 3, 2013, when he was transferred to another BRC facility called the Los
Vecinos Residence. Plaintiff currently lives in the Los Vecinos Residence, which he describes as
"a supportive, permanent housing program for the mentally ill and disabled people, which is
owned, operated, and managed by BRC."

(~~

5, 83.) Plaintitfhas thus "spent more than two

years in BRC's transitional housing residences because he signed a contract with BRC promising
him to be referred to suitable permanent housing."

(~~

213, 2 I 4.)

Plaintiff's "race" is "Arab," his "color" is "white," and his "national origin" is
"Moroccan."

(~~

I 74-76.) Plaintiff alleges that defendants-as well as unnamed co-residents in

BRC housing-intentionally discriminated against him because he is an Arab. Among other
things, plaintiff claims defendants discriminated against him by ( 1) denying him the benefits of
his "contract" with BRC, "on account of his race as Arab"
appropriate housing facilities
(~~

(~~

(~1

12); (2) failing to refer him to

I 13, I 2 I); (3) denying him access to medical and other records

I I 4- I 5); (4) preventing him from complaining about his housing conditions-including the

repeated sale of narcotics on site by violent co-residents-to various state or federal agencies
(~I

I 8, 230); (5) denying the security of plaintiff's person and property by allowing other

residents to access his private locker, and preventing him from reporting the alleged theft of his
laptop to the NYPD (~~52, 66-74, 116-17, 120, 131); and (6) falsely diagnosing him with mental
illness for the purpose of securing financial gain.

3

(~

122).

Plaintitl further claims that, due to his Arab race, defendants conspired with "Tonie Baez,
DHS Senior Counsel, and Michael Yorio, Esq., OASAS Patient Advocacy Unit Manager ... to
deprive ... [plaintiff] of equal protection of the laws" by "getting rid of Plaintiff without
addressing his complaints." (~~ 78, 161-65.) Defendants allegedly conspired to prematurely
move plaintiff from one residence (the Jack Ryan Residence) to another (the Los Vecinos
Residence). As a result, plaintiff was "not able to secure prior to his move-out date, as all
residents would, his DSS furniture allowance," thus forcing him to sleep "on a bare mattress
without any sheets, pillow or blanket."

(~~

134-35.) This "premature" removal ofplaintifffrom

the Jack Ryan Residence also denied plaintiff"full participation in any investigation as to the
theft of his property," including the stolen laptop referenced above.

(~,f

199-20 1.) Plaintitl

claims that defendants transferred him from the Jack Ryan Residence in "retaliation" for his
insistence on an investigation into the laptop theft, which was encouraged by defendants with
their "knowledge and connivance."

(~~

131-32; 198-99.)

Although defendants "own, operate, and manage more suitable buildings than the one to
which Plaintiff was removed," and "suitable assisted housing apartments remained available to
other renters of a different protected class," plaintiff claims that he was "denied every
opportunity to interview for suitable housing." (~~ 213, 214, 218, 221.) Defendants allegedly
"intentionally" excluded plaintiff "in participation from [and] denied him the benefits of ... their
programs or activities receiving federal assistance" on account ofhis race (Arab), color (white)
and national origin (Moroccan).

(~~

174-77.)

On account of the treatment outlined above, plaintiff seeks "injunctive relief, declaratory
relieC compensatory damages, punitive damages, treble damages where applicable, liquidated

4

--------------·-----·-·------·------·--.

damages where applicable, and any other, further, just, and equitable relief by this Court."
(~ 17.)

LEGAL STANDARDS
I.

Legal Standard for Judgment on the Pleadings
Under Rule 12(c) ofthe Federal Rules of Civil Procedure, a defendant who has already

filed an answer to a complaint may move for judgment on the pleadings. Fed. R. Civ. P. 12(c).
In deciding a Fed. R. Civ. P. 12(c) motion the court applies the same standard as it would in
deciding a Rule 12(b) motion. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123,
126 (2d Cir. 200 I). In both postures, the court must accept all allegations in the complaint as
true, drawing all reasonable inferences in the non-moving party's favor, and must decide whether
the plaintiff has pled sufficient facts to state a claim for relief that is plausible on its face. I d.;

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell At!. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The court will not dismiss the case unless it is satisfied that the complaint cannot state
any set of facts that would entitle plaintiff to relief. Patel, 259 F.3d at 126. In deciding such a
motion, the court may consider "any written instrument attached to the complaint, statements or
documents incorporated into the complaint by reference ... and documents possessed by or
known to the plaintiff and upon which it relied in bringing the suit." ATSJ Commc 'ns Inc. v.

Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (internal citation omitted).
Where, as here, a plaintiff is proceeding prose, that plaintiff "is entitled to a particularly
liberal reading" ofthe complaint. Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011).
Thus, when considering prose submissions, a court must interpret them "to raise the strongest
arguments that they suggest." Triestman v. Fed. Bureau ofPrisons, 470 F.3d 471,474 (2d Cir.
2006) (per curiam) (internal quotation marks omitted). Nevertheless, "to survive a motion to
5

dismiss, a prose plaintiff must still plead sufficient facts to state a claim that is plausible on its
bee." Bodley v. Clark, No. 11 Civ. 8955,2012 WL 3042175, at *2 (S.D.N.Y. July 23, 2012).
Judgment on the pleadings is therefore proper where the court is satisfied that the complaint
cannot state any set of facts that would entitle the non-moving party to relief.
II.

Conversion of Motion for Judgment on the Pleadings to Motion for Summary
Judgment
Under Federal Rule of Civil Procedure 12(c), the court may consider, in its discretion and

upon notice to all parties, materials outside the pleadings. Sellers v. M. C. Floor Crafters, Inc.,
842 F.2d 639,642 (2d Cir. 1988). However, Rule 12(d) provides that "[i]t: on a motion under
Rule 12(b )( 6) or 12( c), matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56" and "[a] II parties
must be given a reasonable opportunity to present all the material that is pertinent to the motion."
Fed. R. Civ. P. 12(d). Ordinarily, "this means that a district court must give notice to the parties

before converting a motion to dismiss pursuant to Rule 12(b )( 6) into one for summary judgment
and considering matters outside the pleading." Sahu v. Union Carbide Corp., 548 F.3d 59, 67
(2d Cir. 2008) (internal citations and quotation marks omitted). The '"essential inquiry is
whether the appellant should reasonably have recognized the possibility that the motion might be
converted into one for summary judgment or was taken by surprise and deprived of a reasonable
opportunity to meet facts outside the pleadings."' !d. (quoting In reG. & A. Books, Inc., 770
F.2d 288, 295 (2d Cir. 1985)).
Defendants urge the court to convert the pending motion to a motion for summary
judgment. The court declines to do so. While a close call, the facts and circumstances of this
case do not merit a conversion to summary judgment. It is true that both parties submitted

6

matters outside the pleadings, and plaintiff may have been on notice of a possible conversion.
For example, defendants' notice of motion-duly served on plaintiff-indicates that defendants
seek an order granting "judgment on the pleadings or, in the alternative, granting summary
judgment pursuant to Rule 56 ofthe Federal Rules of Civil Procedure." (Dkt. No. 27.) Plaintiff
filed five memoranda and declarations in response, 1 and submitted a number of exhibits outside
the original pleadings. (See Dkt No. 38:1-7.) Plaintiff's opposition papers also indicate that he
has, at minimum, some understanding ofthe differences between summary judgment and a Rule
12 motion. (Dkt. No. 38:1 at 11-13.)
Nevertheless, mindful of plaintiff's prose status, the court declines to convert the motion
at this juncture. See generally Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir. 2009) (discussing
circumstances where frequent prose litigant may be charged with knowledge of particular legal
requirements); Tracy v. Freshwater, 623 F .3d 90, 101-03 (2d Cir. 20 I 0) (holding that prose
plaintiff's "voluminous motion practice, even if coupled with some degree of demonstrated
competence in prior filings, is insufficient" to justify the withdrawal of the "special solicitude"
normally applied to prose parties). Plaintiff's prose status is especially relevant because he
asserts Section 1983 claims, and "a court should be particularly solicitous ofpro se litigants who
assert civil rights claims." Tracy, 623 F.3d at I 02 (citing Davis v. Coord, 320 F.3d 346, 350 (2d
Cir. 2003)). 2

Plaintiff filed (I) Plaintiffs Answer to Defendant's Rule 56.1 Statement in Support of Their Motion to Dismiss
Plaintiff's Complaint (Dkt. No. 36); (2) Plaintiffs Declaration in Support of His Rule 56( d) Request and His
Opposition to Defendant's Motion to Dismiss (Dkt. No. 37); (3) Plaintiffs Memorandum of Law in Support of His
Rule 56( d) Request and His Opposition to Defendant's Motion to Dismiss (Dkt. No. 38); (4) Plaintiffs Declaration
In Support of His Opposition to Defendant's Reply at Docket Entries Nos. 46 and 47 (Dkt. No. 48); and
(5) Plaintiffs Opposition to Defendant's Reply at Docket Entries Nos. 46 and 47 (Dkt. No. 49).
1

court notes that plaintiff has a history of sophisticated litigation in this district. See Azkour v. Haouzi eta/., No.
II Civ. 5780; Azkour v. Little Rest. Twelve, No. I 0 Civ. 4132. However, plaintiff was represented by counsel for

2The

7

----·----

Because the court declines to convert the motion into one for summary judgment, the
court is considering only the pleadings themselves in ruling on the present motion.

DISCUSSION
I.

Counts I-VII: Sections 1983, 1981, 2000d, 1985, and 1986
Plaintiff brings claims for constitutional violations under 42 U .S.C. § § 1983, 1981,

2000d, 1985, and 1986.
Plaintiff's claims all fail for a common reason: the complaint does not adequately plead
t~1cts that, if true, would entitle plaintiff to relief under any ofthese statutes.
1.

Section 1983

In order to state a claim under Section 1983, a plaintiff must allege that: (I) a right
secured by the Constitution or federal law was violated by defendants; and (2) the alleged
violation was committed by a person acting under color of state law. Am. Mfrs. Mut. Ins. Cu. v.

Sullivan, 526 U.S. 40, 49-50 (1999).
a. The Corporate Defendant: BRC
Even reading the complaint liberally in light of plaintiff's prose status, judgment on the
pleadings is warranted in BRC's favor for the Section 1983 claim brought against the corporate
entity. The complaint does not adequately plead that BRC-a private, non-profit entity-acted
under color of state law or otherwise satisfies the "state action" requirement for Section 1983
claims. See Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308,312 (2d Cir. 2003) ("A
plaintiff pressing a claim of violation of his constitutional rights under § 1983 is thus required to
show state action"); George v. Pathways to Hous., Inc., No. I 0 CIV. 9505 ER, 2012 WL

parts or those cases. In any event, the court finds that plaintiff's litigation experience is not sufficient to justify
COI1\'crting the motion at this time.

8

-------········-----·-···

2512964, at *4 (S.D.N.Y. June 29, 2012) (holding that prose plaintiff could not bring a Section
I 983 claim against a private supportive housing provider "because they are private actors and
Plaintiffhas not alleged that they were acting under color of state law or that there was otherwise
state involvement related to his claims"); Reaves v. Dep't of Veterans Affairs. No. 08-CV-1624
(RJD), 2008 WL 2853255, at *2 (E.D.N.Y. July 22, 2008) (Section I 983 claim involving claim
of unfair treatment with respect to public housing could not be brought against the Salvation
Army because a private organization and its staff members are not state actors).
Plaintiff argues that BRC satisfies the "state action" requirement under the "public
function" exception, or because it receives government funding and is subject to extensive state
regulation. But "government funding of a private entity ... no matter how extensive, is
insufficient to transform otherwise private conduct into state action," and "[t]he mere fact that a
business is subject to state regulation does not by itself convert its action into that of the state."

Young v. Halle Hous. Associates, L.P., I 52 F. Supp. 2d 355, 362 (S.D.N. Y. 200 I); see also
Sybalski v. lndep. Grp. Home Living Program, Inc., 546 F.3d 255, 257-59 (2d Cir. 2008).
Contrary to plaintiff's claims, it is "well established that the provision of low-cost supportive
housing is not a 'public function' within the meaning of section 1983, because 'the provision of
housing, for the poor or for anyone else, has never been the exclusive preserve [of] the state."'

George, 2012 WL at 2512964, at *4 (quoting Young, I 52 F. Supp. 2d at 365). As a matter of
law, the facts adduced by plaintiff fail to demonstrate that any challenged policy or act by BRC
is the product of state action.

9

b. The Individual Defendants: Lawrence a/k/a Muzzy Rosenblatt,
Janet Forte, Tereen Llewelyn-Miller, Kevin Martin, Angela
Kedzior, and John and Jane Does 1-5
As with the claims against BRC, plaintiff has failed to plead a plausible Section 1983
claim against any of the individual defendants.
Plaintiff claims that the individual defendants, "individually and in their ofticial capacity,
engaged in conducts under the color of New York State law," and are liable under Section 1983
because "they are a municipality's contractors and are supervisory officer or employees who
were personally involved in the events underlying the present action."

(~~

1-2.) But in a 258-

paragraph complaint, plaintiff mentions specific individual defendants in less than I 0
paragraphs. (E.g., Compl.

~~

24, 45, 74, 78, 103, 105, 167.) PlaintitTclaims that defendants

Rosenblatt, Forte, Martin, and Llewelyn- Miller denied his request for BRC's tiles regarding its
own investigation of his laptop theft, (Compl.

~

74), and that these same individuals conspired

with counsel at DHS to dissuade plaintiff from filing claims against BRC for abuses or
differential treatment. (Compl. ~ 78.) He further claims that Kedzior, the BRC psychiatrist,
"hyped" his diagnosis of mental illness, and that Rosenblatt enforced a policy obligating BRC's
mental health staff to misdiagnose patients "so that BRC may financially benefit from the funds
allocated to its mental health program by state and local agencies, as matched by federal funds."
(Compl. ~~ I 03, I 05, 167.) Finally, plaintiff claims that Kedzior ignored his complaints about
other residents' drug use and attacks on plaintiff, and refused to call him an ambulance when he
complained of severe emotional distress. (Compl.

,[~

252-53.)

These allegations fail to state a claim under Section 1983. As with the corporate
defendant, plaintiff has not alleged that defendants Rosenblatt, Forte, Llewelyn-Miller, Martin,
Kedzior, or the unnamed "John Doe" defendants engaged in "state action." And, to the extent
10

plaintiff has alleged any "state action" by BRC, he has failed to show that any of the individual
defendants were personally involved in the events giving rise to his claims. See Gaston v.

Coughlin. 249 F.3d I 56, I 64 (2d Cir. 2001) ("Proof of an individual defendant's personal
involvement in the alleged wrong is, of course, a prerequisite to his liability on a claim for
damages under§ 1983"). Plaintiff's conclusory allegation that defendants "are supervisory
otlicers or employees who were personally involved in the events underlying the present action"
merely restates the law, but does not provide sufficient facts to state a claim. In sum, plaintiff
"has not demonstrated that these private parties participated at all in the alleged constitutional
torts, much less that they acted under color of state law." See Traylor, 486 F. App'x at 949-50
(citing Reynolds v. Barrett, 685 F.3d 193,204 (2d Cir. 2012)).
11.

Sections 1981 and 2000d

A plaintiff alleging a violation of Section 198 I must establish that: ( 1) he is a member of
a racial minority group; (2) the defendant intended to discriminate against plaintiff on the basis
of race; and (3) the discrimination concerned an activity enumerated in the statute, such as
making and enforcing contracts. Brown v. City of Oneonta, New York, 22 I F.3d 329, 339 (2d
Cir. 2000). A plaintiff must make a similar showing of intentional discrimination to adequately
allege a violation of Section 2000d.
a. The Corporate Defendant: BRC
Unlike Section I 983, Section 1981 does permit actions alleging discriminatory conduct
against wholly private organizations. But the Section 1981 claim fails because, as discussed
more fully below with reference to the individual defendants, the complaint does not include any
non-conclusory allegation of discriminatory conduct or intent. Without more, the court cannot
sustain a Section 1981 claim against BRC. See George, 2012 WL 2512964, at *7 (noting that
II

"conclusory allegations of racially motivated animus are insufficient") (internal citations
omitted). Nor can the claim under Section 2000d claim survive without a plausible showing of
intentional discrimination.
b. The Individual Defendants
For similar reasons, the complaint does not state a claim under Section 1981 against any
of the individual defendants. Plaintiff has not sut1iciently alleged that the individual defendants
intended to discriminate against plaintiff on the basis of race or that discrimination was a
"substantial or motivating factor" for the defendants' actions, as is required to state a claim under
Section 1981. Tolbertv. Queens Call., 242 F.3d 58,69-70 (2d Cir. 2001). The complaint is
simply devoid of facts indicating that any of these defendants participated in any violation of
plaintiff's constitutional rights on the basis of his race. Plaintiff's pleadings outline, at most, one
specific instance of unnamed BRC employees refusing to intervene when other residents-not
the individual defendants-verbally insulted plaintiff. This is not sutTicient to state a 1981 claim
or a claim under Section 2000d. See Tolbert, 242 F.3d at 69-70 (holding that under both Section
1981 and Section 2000d, a plaintitT must allege that defendant intentionally discriminated against
him on the basis of race); Hardin v. Meridien Foods, No. 98-CV-2268, 200 I WL 1150344, *8,
(S.D.N.Y. Sept. 27, 2001) ("Naked assertion[s] by plaintiff1s] that race was a motivating factor
without a fact-specific allegation of a causal link between defendant's conduct and the plaintiff's
race [are] too conclusory .... "(internal quotation marks omitted)).
Plaintiff's allegations regarding the personal involvement of defendants Rosenblatt and
Kcdzior in a supposed scheme to misdiagnose patients are somewhat more detailed. But plaintiff
spccitically claims that this alleged scheme was motivated by BRC's desire to "financially
benefit from the funds allocated to its mental health program" by government agencies-not by
12

animus toward plaintiff because he is an Arab. (Com pl. ,[ 103). Such actions, even if true, are
not an actionable basis for claims under Sections 1981 or 2000d.
111.

Sections 1985 and 1986

To state a claim under Section 1985(3), a plaintiffmust allege: (1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right of a citizen of the United States. Section 1986 subjects a party to liability if
he knew of acts conspired to be done under Section 1985 and could

have~but

failed

to~prevent

those acts. Traylor v. Steward, 486 F. App'x 948, 949-50 (2d Cir. 2012).
Plaintiff has not alleged any facts to support a claim that defendants Rosenblatt, Forte,
Llewelyn-Miller, Martin, Kedzior, or the unnamed "John Doe" defendants conspired with others
to deprive him ofhis constitutional rights. Most significantly, the complaint simply fails to
"provide some factual basis supporting a meeting of the minds such that defendants entered into
an agreement, express or tacit, to achieve the unlawful end." Arar v. Ashcrojt, 585 F. 3d 559,
569 (2d Cir. 2009) (internal quotation marks and citations omitted). Without adequately
pleading the existence of an agreement involving any of the defendants, plaintiff cannot state a
1985 or 1986 claim. See Emmerling v. Town of Richmond, No. 10 Civ. 3246, 2011 WL
2315167, at *2 (2d Cir. 2011) (affirming dismissal of plaintiff's Section 1985 claim because
p1aintifT''provided only vague and conclusory allegations of conspiracy"); see also Gropper v.
Fine Arts H(ms., Inc., No. 13 Civ. 2820,2014 WL 1327964, at *6-7 (S.D.N.Y. Apr. 3, 2014)

(accord).

13

Moreover, to the extent the complaint specifies a motive for any alleged conspiracy, it
lists "'financial gain and petty political considerations[.]" (See Compl.

,l,f 161,

163, 169).

Plaintiff has not pleaded a non-conclusory basis for finding that these events were the result of a
common agreement to discriminate against him and deprive him ofhis constitutional rights. See

Webb v. Coord, 340 F.3d 105, I 10~1 I (2d Cir. 2003) (holding that conclusory allegations of
conspiracy are insufficient to plead claim for relief). And because plaintiff's Section I 985 claim
t~1ils,

so too does his claim under Section 1986. Traylor, 486 F. App'x at 950 (aflirming

dismissal of Section 1986 claim when the related Section I 985 claim is inadequately pleaded).

II. Counts VIII-IX: Sections 3604 and 3617
Plaintiff also brings claims under 42 U .S.C. § 3604 and § 3617, alleging both intentional
discrimination and disparate treatment or impact discrimination.
Section 3604 (the Fair Housing Act) prohibits discrimination "against any person in the
terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color, religion, sex, familial status, or national
origin." Section 3617 makes it unlawful to "coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment

ot~

or on account of his having exercised or enjoyed, or on

account of his having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protected by [inter alia] ... Section 3604." 42 U.S.C. § 36 I 7. The
implementing regulations interpret Section 36 I 7 to cover "[t]hreatening, intimidating or
interfering with persons in their enjoyment of a dwelling because ofthe race, color, religion, sex,
handicap, familial status, or national origin of such persons, or of visitors or associates of such
persons." 24 C.F.R. § 100.400(c)(2).

I4

The complaint does not state a claim for violations of Section 3604. Like the other
claims discussed above, these claims are conclusory and must be denied. As an initial matter, it
appears that other agencies-not BRC or any of the individual defendants-controlled the
specitic type of supportive housing and other benefits available to plaintiff. In any event,
plaintiff has not adequately pleaded that defendants treated similarly situated residents
differently, or adequately connected plaintiff's Arab, Muslim or handicapped status with any
supposed decision to move him "prematurely" to a different residence or to deny him alternative
housing.
Nor does the complaint state a claim for violations of Sections 3617. Again, the
allegations here are merely conclusory. The complaint does not include any facts sufficient to
support any inference that there is a causal connection between plaintiff's complaints to BRC or
his race or handicap on the one hand, and any adverse action taken against him by defendants on
the other.
For all of the reasons discussed above, plaintiff's federal claims are dismissed against all
defendants.
Counts X-XI: New York State Claims

Plaintiff's complaint includes claims for gross negligence and negligent intliction of
emotional distress under New York state law. However, having dismissed plaintiff's federal
claims, the court declines to exercise supplemental jurisdiction over plaintiff's remaining statelaw claims. See Valencia ex ref. Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003). 3

3

Plaintiff claims that defendants have refused to comply with this court's November 8, 2013 order directing
defendants "to provide identities of John/Jane Doe Defendant whom PlaintifTsceks to sue here and the addresses
\\here these Defendants may be served" within sixty days. (Dkt. No. 8.) Plaintiff requests a contempt hearing
regarding defendants' alleged refusal to comply with this order. (Dkt. Nos. 19, 20.) Defendants respond that,
despite due diligence, they were unable to ascertain the names or addresses of the John/Jane Doc defendants, and

15

LEAVE TO AMEND
While in general, prose complaints should not be dismissed without granting leave to
amend at least once when a liberal reading of the complaint gives some indication that a valid
claim might be stated, leave to amend is not necessary when it would be futile. Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2012) (finding leave to replead would be futile when the
complaint, even when read liberally, did not "suggest[] that the plaintiff has a claim that she has
inadequately or inartfully pleaded and that she should therefore be given a chance to reframe").
The problem with plaintiff's case is substantive-among other deficiencies, there is no state
action at issue, and there is no reason to believe that any of the alleged actions taken by
defendants were discriminatory. In these circumstances, leave to replead is not justified.

that it \\'OLdd be frivolous to name any BRC residents without substantiation. (Dkt. No. :?.1.) The court notes that
plainti fT admits the "unimportance" of the laptop theft in "Plaintiffs overall allegations of discrimination and
violation of his constitutional rights." (Dkt. No. 38 at 14-15.) And, these unnamed defendants were allegedly
involved only in the thetl of plaintiff's laptop-which constitutes the basis of only a state law claim, not a federal
one. Because the court declines to exercise supplemental jurisdiction over plaintiffs state law claims, the court need
not hold any such hearing, and denies plaintitrs request.

16

-----------

CONCLUSION

For the reasons discussed above, defendants' motion for judgment on the pleadings is
granted, and the case is dismissed with prejudice.
This opinion resolves the motion listed as item 27 on the docket. The Clerk ofthe Court
is directed to terminate the motion and to close the case.

SO ORDERED.
Dated:

~

New York, New York
March 23, 2015

() cAi

~~~~~~1-/--

THOMAS P. GRIESA
U.S. District Judge

17