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April 15, 1986

ELLEN JANE WEISER, EVERLELA BOSTON, SIMONE COLLIER, ELLEN GLICK, ANTHONY HARRIS and BARRY WARREN, Plaintiffs, against EDWARD I. KOCH, as Mayor of the City of New York, GEORGE GROSS as Administrator of the New York City Human Resources Administration, and CESAR A. PERALES, as Commissioner of the New York State Department of Social Services, and all of their successors, agents, servants, employees and those persons in active concert or participation with them, Defendants

The opinion of the court was delivered by: EDELSTEIN


EDELSTEIN, District Judge:

Plaintiffs, former and present residents *fn1" at New York City's municipal shelter system, seek an injunction, declaratory relief and damages under 42 U.S.C. § 1983. Plaintiffs allege that their ejection from the New York City municipal shelter system violated the due process and equal protection clauses of the fourteenth amendment and the New York Constitution. *fn2" Plaintiffs further allege violations of various New York state statutes, article XVII, § 1 of the New York Constitution and the first amendment to the United States Constitution. *fn3" Jurisdiction is conferred on the court by 28 U.S.C. §§ 1343 and 1331. Plaintiffs also seek to invoke this court's pendent jurisdiction.

 Plaintiffs have moved for partial summary judgment on the issue whether the eviction of plaintiffs from municipal shelters violated their due process rights secured by the United States Constitution. The New York City ("City") defendants, have cross-moved for partial summary judgment. The New York State ("State") defendant has moved for judgment on the pleadings. *fn4"

 State defendant's motion for judgment on the pleadings is granted. The court will not provide injunctive or declaratory relief against any defendant because plaintiffs lack standing to obtain equitable relief. Furthermore, the eleventh amendment bars adjudication of the damage claims against State defendant in federal court. The court declines, at this time, to exercise pendent jurisdiction over plaintiffs' state law claims against the City. Finally, the court abstains from consideration of plaintiffs' federal due process claim for damages against the City until the decision in McCain v. Koch, is rendered by the New York Appellate Division, First Department.


 City and state defendants operate a system of 18 municipal shelters which provide food and lodging to homeless individuals. Each municipal shelter is operated by the Human Resources Administration, a city agency under Mayor Koch's control. Funding for municipal shelters is divided between the state and city governments. The State Department of Social Services promulgates regulations governing the operation of these shelters. The shelter services are provided to any person who requests temporary housing, although some services are provided only on a short term basis. Affidavit of George Hicks, at 3.

 In a letter given to all City shelter residents, the City has established that shelter residents are subject to removal for one of three reasons: (1) assaulting or physically attacking another person, (2) illegally consuming drugs on the premises; or (3) intentionally setting fire to the premises or causing damage to the facility or equipment. Letter from Shelter Care Center for Women Annex, 282 East Third Street, to Shelter Residents. Prior to the commencement of this action, defendants had not promulgated procedures for determining the veracity of an allegation that a shelter resident had committed one of the above infractions.

 Plaintiff Ellen Jane Weiser *fn5" ("Weiser") is a 44 year old woman who resided at City defendant's shelters at various times between September 19, 1983 and January 23, 1984. On January 21, 1984, Weiser was discharged from Lenox Hill Hospital following a two week hospitalization. From January 21, 1984 through January 23, 1984, Weiser resided at the 51st Street Women's Shelter. On January 22, 1984, she observed another resident, Acksulia Peux ("Peux"), throwing Weiser's and other residents' clothes on the floor of a shelter room. Weiser contends that she reported this incident to the shelter staff. Staff members accompanied Weiser to her room and told her to clean up the mess. Plaintiff Weiser replied that she did not make the mess but agreed to pick up her own belongings. The following morning, January 23, 1984, plaintiff noticed that a pair of her pants was missing. Weiser found her pants in Peux's plastic bag and took the pants to the cafeteria to confront Peux. Weiser alleges that Peux then kicked her in the groin, and in self-defense, Weiser pushed the attacking Peux away. The altercation was stopped by shelter workers and both women were escorted to offices in the shelter.

 Weiser contends that she was never questioned about what had occurred and was summarily suspended from the municipal shelter system for seven days. Weiser further alleges that when she protested, the shelter staff threatened to double or triple her penalty. She was not given written notice of her discharge, or an opportunity to explain her side of the story at a hearing prior to the ejection decision. Further, she was not provided or informed of any opportunity for a post ejection appeal. Defendants concede that shelter residents who are ejected from the shelter are not given a hearing with an opportunity to confront witnesses or an opportunity to appeal. Defendants contend, however, that Weiser was given an opportunity to explain her side of the story to shelter employees. In addition, Weiser alleges that she was not given money for carfare or transportation tokens, or the names of alternate private shelters. She claims that when she left the 51st Street Shelter, she was attacked again by the same woman outside the shelter. Weiser then fled back into the shelter, but was again ordered to leave. Later that day, January 23, 1984, Weiser was turned away from another city shelter at 350 Lafayette Street, where she was advised that the 51st Street shelter had barred her from the municipal shelter system for seven days. Weiser alleges that she then walked over 150 blocks, from 350 Lafayette Street to 125th Street where she stayed with a friend overnight. As of January 25, 1984, plaintiff Weiser has been living at a private shelter for homeless individuals.



 Although the parties did not address whether plaintiffs have satisfied the requisite standing criteria, those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94-101, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). Plaintiffs must demonstrate a "personal stake in the outcome" in order to "assure that concrete adverseness which sharpens the presentation of issues" necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).

 Under the Supreme Court's holding in City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), there must be sufficient immediacy, reality and causality between defendants' conduct and plaintiffs' allegations of future injury to warrant declaratory and injunctive relief *fn6" against either the City or the State. Id. at 111. In Lyons, plaintiff sought damages and injunctive and declaratory relief, alleging that Los Angeles police officers had stopped him for a traffic code violation and, without provocation or justification, had seized him and applied a chokehold rendering him unconscious. The plaintiff sought to prohibit the Los Angeles police from using control holds, except in situations where the victim appeared to be threatening immediate use of deadly force.

 The Supreme Court stated that Lyons' standing to seek an injunction depended on whether he was likely to suffer future injury from the use of a chokehold by police officers. Id. at 105. The Court reasoned that Lyons did not "establish a real and immediate threat that he would again be stopped for a traffic violation, or for any offense by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part." Id. The Court held that because there was not "a sufficient likelihood that he will again be wronged in a similar way," Lyons was not entitled to an injunction. Id. at 100. The critical standing inquiry is whether a plaintiff is "realistically threatened by a repetition of his experience . . ." or whether the claim is speculative. Id. at 109; see O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); Curtis v. City of New Haven, 726 F.2d 65, 67 (2d Cir. 1984).

 Plaintiffs have failed to demonstrate a case or controversy with the City or State within the meaning of Lyons that would justify the equitable relief sought. Plaintiffs do not allege, nor is it likely, that they will be evicted imminently from a municipal shelter without adequate due process protection. See O'Shea v. Littleton, 414 U.S. at 497; Diotte v. Blum, 585 F. Supp. 887, 896-97 (N.D.N.Y. 1984). The most that can be said for plaintiffs' standing is that if they are again accused of violating a shelter rule, they may be suspended without due process of law. City of Los Angeles v. Lyons, 461 U.S. at 102; O'Shea v. Littleton, 414 U.S. at 497. It is assumed that plaintiffs will conduct their activities so that they are not accused of violating shelter rules. See City of Los Angeles v. Lyons, 461 U.S. at 103; O'Shea v. Littleton, 414 U.S. at 496. Thus, plaintiffs lack standing for obtaining federal injunctive or declaratory relief against either the City or State defendants. *fn7"


 1. Constitutional Power to Adjudicate Pendent State Claims

 This is an action alleging both federal and state constitutional and state statutory claims. See supra notes 2-4 and accompanying text. The Supreme Court has outlined a three part analysis which a federal court must apply before concluding that it has the power to adjudicate a pendent state claim. The first consideration is whether there is a substantial federal question, United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); see Hagans v. Lavine, 415 U.S. 528, 538, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974) and "the relationship between [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" United Mine Workers v. Gibbs, 383 U.S. at 725. For this requirement to be satisfied, [t]he state and federal claims must derive from a common nucleus of operative fact" such that a plaintiff "would ordinarily be expected to try them all in one judicial proceeding." Id. In this action, the federal and state claims clearly permit the conclusion that the entire action constitutes but one constitutional case. Indeed, the federal and state claims in this case derive from the same facts--the suspension of plaintiffs from shelters without a hearing. *fn8" Further, plaintiffs' alleged deprivation clearly raises a substantial federal question. Hagans v. Lavine, 415 U.S. at 535-43.

 Second, in Aldinger v. Howard, 427 U.S. 1, 19, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976) and Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 370-77, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978), the Supreme Court determined that a federal court must also consider the intent of Congress, before concluding that it has the power to exercise pendent jurisdiction over nonfederal claims or parties. *fn9" The specific statute that confers jurisdiction over the federal claim must be interpreted to see whether Congress has expressly or by implication negated the exercise of jurisdiction. Aldinger v. Howard, 427 U.S. at 17-18. Courts have routinely not questioned their statutory power in § 1983 actions to hear pendent claims when new parties are not brought into the lawsuit, thereby holding that Congress has not expressly or by negative implication barred state law claims from suit in § 1983 actions. *fn10" Finally, the Supreme Court recently held that a federal court cannot exercise pendent ...

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