Toliver v. City of N.Y.

MICHEL TOLIVER, Plaintiff, v. THE CITY OF NEW YORK; DEPT. OF HOMELESS SERVICES; PROJECT RENEWAL FORT WASHINGTON;PROJECT RENEWAL ANA'S PLACE; MR. MENDOZA; MS. GRAHAM; JOHN/JANE DOE;JUDY MALLOY; DR. RADULOVICK, Defendants.

19-CV-11834 (CM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 21, 2020

ORDER TO AMEND

COLLEEN McMAHON, Chief United States District Judge:

Plaintiff, appearing pro se, brings this action invoking the Court's federal question jurisdiction under 28 U.S.C. § 1331. He asserts claims that arose during his stay in housing provided by a nonprofit organization — Project Renewal. By order dated December 30, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.

STANDARD OF REVIEW

The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.

BACKGROUND

In May 2019, while Plaintiff Michel Toliver was staying at Ana's Place, a shelter operated by Project Renewal, he filed a police report because his property was unlawfully searched and "never return[ed]" to him. (ECF 1, at 5.) "Threats followed," and Plaintiff was transferred to another facility. (Id.) Plaintiff is currently at Project Renewal's Fort Washington location, but Plaintiff is still being retaliated against "based on [his having filed a] police report."Other people "consistently caused [Plaintiff] to 'lose his bed' and go back and forth" to various shelters, which has increased the pain in his back and legs. (Id.)

At Project Renewal, Plaintiff "is being denied" medication that was prescribed for him for seizures and pain. (Id. at 6.) Plaintiff contends that his medication was "stolen and/or refused to be given." (Id.)

Staff at Project Renewal, who were supervised by Judy Malloy, allegedly called Plaintiff a "derogatory label as a member of the L.G.B.T. community." (Id.) Plaintiff filed grievances on the issue.

Plaintiff brings this action invoking the Court's federal question jurisdiction and asserting violations of the Fourth Amendment right to be free from unlawful search and seizure, "retaliation based on [Plaintiff's having] filed grievances, discrimination based on sexual orientation, and violation of HIPAA laws." (Id. at 2.) Plaintiff names as Defendants the City of New York and its Department of Homeless Services (DHS) and DHS Supervisor Mendoza, Project Renewal Fort Washington, Project Renewal Ana's Place, and four individuals affiliated with Project Renewal (Judy Malloy, "Ms. Graham," Dr. Radulovick, and John/Jane Doe). He seeks $3 million in damages.

DISCUSSION

A. Department of Homeless Services

As an agency of the City of New York, the DHS is not an entity that can be sued in its own name. N.Y. City Charter ch. 17, § 396 ("[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law."); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010) ("[A] plaintiff is generally prohibited from suing a municipalagency."). Claims against DHS must be brought against the City of New York, and the Court therefore dismisses Plaintiff's claims against DHS.

B. City of New York

When a plaintiff sues a municipality under § 1983, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) ("A municipality or other local government may be liable under this section [1983] if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation.") (quoting Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011).

In other words, to state a § 1983 claim against a municipality such as the City of New York, the plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997).

Here, Plaintiff contends that he encountered various difficulties in homeless shelters operated by a private nonprofit agency, including retaliation for having filed grievances, discriminatory comments based on his sexual orientation, and alleged violations of his rights under the Fourth Amendment. Plaintiff does not identify, however, any policy, custom, or practice on the part of the City of New York that caused these alleged violations of his rights.

Plaintiff sues a Senior Administrator for the Department of Homeless Services, who Plaintiff identifies as "Mr. Mendoza." A claim against Defendant Mendoza in his official capacity is, in essence, a claim against the City of New York. See, e.g., Castanza v. Town ofBrookhaven, 700 F. Supp. 2d 277, 284 (E.D.N.Y. 2010) ("[I]t is duplicative to name both a government entity and the entity's employees in their official capacity). To state an individual-capacity claim under § 1983 against Defendant Mendoza, Plaintiff must plead facts showing what Defendant Mendoza personally did or failed to do that violated Plaintiff's rights. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (holding that a § 1983 plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation).

An individual defendant can be personally involved in a § 1983 violation if:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.

Colon, 58 F.3d at 873.

Plaintiff mentions Defendant Mendoza only once in the complaint: Plaintiff alleges that after he filed a police report, "threats . . . followed," and as a result Plaintiff's "transfer was necessary and generated." (ECF 2, at 5.) Defendant Mendoza therefore "placed Plaintiff back in the other 'Project Renewal' facility." (Id. at 6.) Plaintiff does not have a constitutional right to housing in any particular facility, and allegations that, when Plaintiff complained about an incident at one facility, Defendant Mendoza assigned Plaintiff to a different facility do not state a claim that Defendant Mendoza violated Plaintiff's rights.

Plaintiff does not plead facts showing that any policy, custom or practice of the City of New York caused a violation of his rights, or that DHS Senior Administrator Mendoza personallydid or failed to do anything that violated Plaintiff's rights. Plaintiff thus fails to state a claim on which relief may be granted against the City of New York or DHS employee Mendoza.

C. Project Renewal

1. Claims Under § 1983

A claim for relief under § 1983 must allege facts showing that each defendant acted under the color of a state "statute, ordinance, regulation, custom or usage." 42 U.S.C. § 1983. Private parties are therefore not generally liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood...